SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2017] ACTSC 281

CRIMINAL LAW - EVIDENCE - Judicial Discretion to Admit or Exclude Evidence - Whether exercise of discretion to admit or exclude evidence by trial judge at first trial binding on trial judge at retrial - operation of s 76 of the Court Procedures Act 2004 (ACT) - where a conviction at first trial is quashed on appeal there is nothing conclusive about a ruling as to admissibility of evidence which involves no final determination of any issue of fact and law final - s 56 and 137 of the Evidence Act 2011 (ACT) operate so that the trial judge must determine if evidence is relevant and that its probative value outweighs its prejudicial effect.

Court Procedures Act 2004 (ACT) s 76

Evidence Act 2011 (ACT) ss 56; 137

Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251

Edwards v R (1997) 94 A Crim R 204

Mr M Thangaraj SC with Ms M Campbell and Mr K Lee (Crown)

Mr G Georgiou SC with Ms L Line and Mr M Stanton (Accused)

1. The prosecution seeks to tender a letter dated 24 May 1986 written by a Ms Irene Finke to the accused. In addition, the prosecution seeks to tender a number of other letters written by the accused to Ms Finke during the period from 2 June 1986 to 4 January 1989.

2. The letters in question establish that between 24 May 1986 and 4 January 1989, and in consequence of an advertisement apparently placed in a magazine or newspaper by the accused, Ms Finke who lived in Munich in Germany and the accused corresponded with each other.

3. The prosecution submits that the 'crucial letter' is a letter written by the accused and dated 24 December 1987. This letter is the third letter bearing this date and was admitted into evidence, with redactions, in the first trial.

4. The letter in question states as follows (omitting formalities):

[redacted]

[redacted]

To make matters worse, I was assaulted by a neighbour one week ago after an argument over a parking space. He punched me and gave me a black eye. But he has 2 friends as witnesses. They went to the Police and lied. Now I am to be charged with assaulting him. This injustice, on top of thinking about my father's will, is driving me crazy. Now I want to kill the neighbour, his friends, and the bastard Police as well. I have been to a solicitor of course, he doesn't care except that this is a chance to make some more money. [redacted] Now you know the truth.

[redacted]

5. In the course of the first trial, discussion took place as to whether or not the letter should be admitted into evidence. Carruthers AJ stated at transcript page 3264:

I have already indicated, for the third letter of 24 December I would have in mind rejecting the whole of the first paragraph, the whole of the second paragraph and the last two - I am sorry, the second last sentence, so that that paragraph would end up, "Now you know the truth". And what would be excised would be the sentence, "I sympathise", and ending, "millions".

Your Honour, I wish to deal, if I may, very respectfully without cavilling it, I take it your Honour is indicating, rather than ruling, at this point. Your Honour, although there is no doubt that that sentence, "I sympathise with men who kill hundreds thousands of millions", is gravely prejudicial. It is gravely prejudicial because it is directly relevant to the extent of what the Crown says is his murderous hatred in relation to "the neighbour, the friends and the bastard police." It is difficult to imagine that a hatred more intense than one that could permit a sympathy with", what is plainly a reference there, "those who commit genocide". Your Honour, it is the very passion and level of hatred, which the Crown says the jury needs to appreciate as a circumstantial fact in evaluating whether or not it was likely that he would wish to murder the assistant commissioner. It is merely language which, in the most extreme form, characterises the extent of his hatred.

Otherwise what is happening is this, your Honour. Your Honour is saying, well, the extent of his hatred and the meaning of his threat is relevant and admissible and we respectfully submit that is plainly so, but yet the passage which demonstrates its true extent; it comes from his own words, your Honour, is omitting because of the, if I may say, its unlimited and cataclysmic degree. We submit that it is that very matter which gives it its peculiar cogency and relevance.

Well, I think that I could give more detailed reasons as to why I really feel, in the exercise of my discretion, I should reject that but I really feel that it could just be taken by the jury as straight out going to bad character and any prejudicial matter that goes to character - or bad character, should only be allowed in if it is so probative that it can overcome the hurdle of the inadmissibility of evidence that goes to bad character. And I just feel equivocal about that and I really feel that it should not go in. I feel quite strongly about it, Mr Crown. I can - I appreciate exactly what you are saying but I really feel I should reject it.

8. Accordingly, the letter in question was admitted into evidence as Exhibit 245Z, with the redaction as ruled by Carruthers AJ above.

9. The defence submits that the rulings made by Carruthers AJ concerning this letter, and other letters, "apply to the present proceedings" unless it is not in the interests of justice that they do so. This submission is based upon s 76 of the Court Procedures Act 2004 (ACT) (Court Procedures Act). Section 76 (2) of that Act provides that orders, rulings or directions may be made by the Supreme Court for the purpose of a trial for an indictable offence before a jury is empanelled. Section 76 (3) of the Act provides that an order, ruling or direction made pursuant to s 76 (2) is binding on the trial judge at the hearing of the trial, unless in the opinion of the trial judge it is not in the interests of justice that the order, ruling or direction remains binding.

10. In my view, the argument that the Court Procedures Act applies to the rulings made by Carruthers AJ in the course of the trial in 1995 is misconceived. First, the rulings in question were not made pursuant to that Act which did not exist at the time. Secondly, the rulings were not made before a jury was empanelled. Thus, the rulings were not pre-trial rulings at all, as distinct for example from the several rulings which I have made in this matter which are made pursuant to s 76 (2) of the Court Procedures Act.

11. In the absence of a statutory provision such as s 76 (2) of the Court Procedures Act it is clear that, at common law, a ruling given in the exercise of the discretion to reject evidence, the prejudicial effect of which is alleged to outweigh its probative value, involves no final determination of an issue of fact or law. Although in Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 (Rogers) it was held that re-litigation in subsequent criminal proceedings of an issue of fact, already finally or conclusively decided in earlier proceedings, is an abuse of process, that does not apply in the case of a ruling as to admissibility of evidence which involves no final determination. In Rogers, Deane and Gaudron JJ (both members of the majority) stated (at 278-279) that "there is nothing conclusive about a ruling as to the admissibility of evidence which .... involves no final determination of any issue of fact and law."

12. In Edwards v R (1997) 94 A Crim R 204 (Edwards) the Victorian Court of Appeal gave consideration to circumstances similar to those now before me. The appellant had been presented before the County Court in March 1995 on three counts, namely trafficking in amphetamines, possession of amphetamines and possession of cannabis. The evidence was that in the course of the arrest the appellant had been searched and a pistol had been located under his clothing. The trial judge ruled that the evidence of the finding of the pistol on the appellant should be excluded on the sole basis that the prejudicial effect of the evidence outweighed its probative value. The appellant was convicted of trafficking in amphetamines. However, he successfully appealed to the Court of Appeal. It was ordered that he be retried. At the commencement of the second trial, counsel for the prosecution made application to the trial judge to revisit the ruling of the trial judge in the first trial so as to permit the evidence of the finding of the pistol to be admitted on the new trial. The second trial judge acceded to the application and the evidence was led by the prosecution and was given prominent treatment in the addresses of Counsel and in the charge to the jury. On appeal, the argument advanced on behalf of the appellant was, in essence, that by reason of the High Court's decision in Rogers the second trial judge was bound by the ruling of the first trial judge as to the introduction of the evidence and was precluded from reconsideration of the question. In response to that argument Hayne JA (as he then was) said at 204 - 205:

I do not accept that that is so. First, _Roger_s concerned a ruling made on a question of fact - whether certain statements made to police were made voluntarily. The ruling in question in this case was not a finding of fact but a ruling in exercise of the discretion to reject evidence the prejudicial effect of which, it was alleged, outweighed its probative value. Secondly, Rogers concerned a ruling given in a trial which was not affected by subsequent appeal. That is, the ruling which it was sought to challenge, had been given in a trial the verdict in which was now incontrovertible there having been no appeal from it. The ruling which it was said the judge at the second trial in this case should have followed was given in a trial the verdict in which was quashed...

Here, the verdicts at first trial having been set aside and the convictions quashed, there is no judicial decision that could be regarded as incontrovertible and the principles [set out in Rogers] that I have mentioned have no application.

13. In the course of his judgment in Edwards, Batt JA stated at 205:

First, in my view, the ratio of the two majority judgements in Rogers is that re-litigation in subsequent criminal proceedings of an issue of fact or law already finally or conclusively decided in earlier criminal proceedings is an abuse of process and therefore impermissible. That is, the ratio is confined to "final" or "conclusive" decisions of issues: see 256; 464 and 279; 483. The statement at the latter page that the determination "becomes final once a verdict is returned and it remains final unless the verdict is quashed or set aside" is directly applicable and its corollary is that when, as happened here on 20 December 1995, the verdict (or, more accurately, the conviction reflecting the verdict) was quashed by the Court of Appeal, the decision of [the first trial judge] ceased to be final or conclusive. Indeed, in my view, the whole trial slate was wiped clean.

14. Accordingly, I am satisfied that the previous rulings of Carruthers AJ in this matter relating to the exercise of his discretion to exclude evidence, the prejudicial effect of which he considered outweighed the probative value, are not binding upon me. That said however, I accept that an accused person may feel a sense of unfairness at being compelled to again argue an issue on which he has succeeded at an earlier trial. Furthermore, there is something to be said in terms of public respect for the administration of justice that apparently inconsistent rulings may be corrosive of public confidence in the judicial system. However, as Eames AJA said in respect of that policy consideration in Edwards at 216:

In my opinion, to the extent that the underlying policy considerations have any application to such rulings, they are outweighed by competing policy considerations as to the public interest in the prosecution of offenders by the tendering of relevant and admissible evidence, and by reference to the scandal of judges being denied the opportunity to exercise their own discretion in the face of a wrong exercise of discretion by another judge at an earlier trial, such judgment and verdict having been set aside on appeal.

15. For those reasons, it appears to me that it is proper to give appropriate consideration to the basis upon which previous rulings were made. However, if in the exercise my discretion I were to conclude that a previous discretionary ruling was not soundly based I would reconsider it.

16. Accordingly, I now return to consideration of the third letter of 24 December 1987. As stated above, the prosecution now seeks to rely upon the entirety of the letter at trial. The defence submits however, that the first two paragraphs of the letter are irrelevant to any issue before the jury and thus are inadmissible under s 56 of the Evidence Act 2011 (ACT) (Evidence Act). In the alternative it is submitted that they contain unfairly prejudicial material about the attitude of the accused to his family which ought to be excluded under s 137 of the Evidence Act. In response to this, the prosecution submits that the relevance of the first two paragraphs is related to tendency incident 7, which is relied upon as evidence under Tendency 4 which tendency has been ruled to be admissible by me. Incident 7 is said to have taken place in December 1986 when the accused attended the property of his parents and attempted to break down their front door. The evidence is that later that day the accused telephoned his parents and threatened to murder them. The prosecution submits that paragraphs 1 and 2 of the letter under consideration provide context to the acrimonious relationship between the accused and his family and make it more likely that tendency incident 7 happened. That said the prosecution accepts that some of the comments made by the accused in the letter are more prejudicial than probative.

17. In my view, and subject to the consideration in due course of whether or not the incident in question is admissible under Tendency 4, in general the first two paragraphs of this letter are relevant to that issue and the probative value thereof does outweigh the prejudicial effect. That said, the third sentence of the first paragraph commencing "She expresses this...." should be redacted, as should the last three sentences of the second paragraph commencing "I do not think...."

18. With regard to the third paragraph the defence accepts that there is some probative value in the first seven sentences. However, it is submitted that the statement contained in the seventh sentence "Now I want to kill the neighbour, his friends, and the bastard Police as well" (the 'first threat' contained in that letter) ought not to be admitted under section 137 of the Evidence Act. It is submitted that the extreme and generalised nature of the sentence, expressing as it does the desire to commit multiple murders, gives rise to the danger of unfair prejudice. It is argued that the accused is not on trial for multiple murders, nor is he on trial for murdering his neighbour, Mr Russo, nor Mr Russo's friends. In addition, it is argued on behalf of the accused that the sentence in question reveals the state of mind of the accused at a particular time shortly after his arrest in the Russo matter. It is submitted that what was said at that time does not shed light on how the accused may have felt 'in the long term'. This evidence was ruled as admissible by Carruthers AJ in the first trial, but the defence nevertheless submits that the danger of unfair prejudice outweighs its probative value.

19. Furthermore the third paragraph contains the sentence 'I sympathise with men who kill hundreds, thousands, millions.' This sentence was excised by Carruthers AJ, and it is submitted by the defence correctly so, on the basis that the danger of unfair prejudice caused by this sentence outweighs its probative value. The last sentence of the third paragraph contains the words "Now you know the truth." Although Carruthers AJ did not redact those words it is submitted on behalf of the accused that those words cannot be divorced from the preceding statement about the sympathy that the accused expressed for men who commit mass murder, and should also be redacted.

20. The prosecution submits that the third paragraph shows the anger that the accused felt in relation to the Russo charge and the injustice that he felt at being charged. It submits that the first seven sentences are descriptive of recent events in the accused's life at that time and provide context for what is submitted to be a 'powerful and damning admission'. It is contended that the relevance of that admission is that it demonstrates clearly the nature and extent of the anger the accused felt towards police and others. The prosecution case is that over a considerable period of time there built up in the accused an elevated level of frustration and anger which is highly relevant in relation to the issue of motive. The prosecution case is that the build-up of frustration and anger developed first towards the public service, then towards police, and ultimately towards Mr Winchester. The prosecution case is that the accused had a long held view that he had suffered particular injustice in relation to the Russo charge, not just by reason of the fact that he had been charged, but also because of the fact that police had not charged Russo, who the accused contended had assaulted him.

21. It is the prosecution case that the accused had developed a "murderous anger" by at least December 1987 and that this letter is important to the Crown case and to the issue of motive as it is a true reflection of the accused's state of mind. In that regard the prosecution submits that it is necessary for it to demonstrate through the correspondence between the accused and Ms Finke that there was a depth of relationship, and that depth of relationship led to frank and insightful exchanges between the accused and Ms Finke. It is submitted that the threat to kill the neighbour refers to Mr Russo and that that is relevant to the prosecution case of a build-up of anger in the accused based upon a perceived injustice which goes to motive and ultimately to the death of Mr Winchester. It is submitted that it is important to the prosecution that the jury understands the motive that is put and understands the accused's state of mind with respect to the public service and re-entry into the public service and subsequently his attitude to police and finally to Mr Winchester. It is contended that "This is a motive that was years in developing, the anger and bitterness became murderous in thought, and by January 89 he was prepared to go through with it".

22. There is no doubt that the content of this letter is prejudicial, but in the context in which the prosecution puts its case it appears to me that much of the letter is probative indeed. That said however, I agree with the determination of Carruthers AJ that the sentence "I sympathise with men who kill hundreds, thousands, millions" is highly prejudicial. I am of the view that this sentence should be redacted under s 137 of the Evidence Act.

23. That being the case, it is now necessary to turn to other letters upon which the prosecution seeks to rely.

24. These letters were admitted in their entirety by Carruthers AJ and it is conceded by the defence that no objection is taken to their admission if one or other of the threats referred to in the third letter of 24 December 1987 is admitted into evidence.

25. This letter was admitted in its entirety at the first trial. However, it is submitted on behalf of the accused that if the letter is to be admitted into evidence at the retrial the following statement should be excluded:

For them, time has stood still. They think of Germany as it was in 1948 or 1952. Sometimes they disapprove of modern changes in German society. This is normal with immigrants who go to another country from any land.

26. The defence argues that this passage is irrelevant and that its content does not advance the context of the relationship between the accused and Ms Finke and that the generalised statements made by the accused about immigrants and specifically those of German heritage are irrelevant and potentially capable of prejudicing members of the jury against the accused. On the other hand the prosecution observes that Carruthers AJ considered there was nothing prejudicial in that letter and that the accused's counsel at the time did not object to the admission of the letter into evidence. The prosecution submits that the paragraph should not be excluded and that it is a relevant part of the context of the evidence as it shows the diverse topics discussed between the accused and Ms Finke and demonstrates the building of a relationship in which the accused freely and frankly offered his view. In my view the paragraph is innocuous and cannot be said to be unfairly prejudicial.

27. This letter was admitted in its entirety by Carruthers AJ. On the basis that the threats in the letter dated 24 December 1987 are admitted into evidence the defence takes no objection to this letter being admitted at the retrial to give context to that letter.

28. This letter was partially redacted at the first trial. However, the prosecution submits that part of the previous redaction should not remain and the defence submits that the redaction should remain but with further redaction. The further redaction sought is in relation to the following statement:

Chernobyl was a good example of how far away Australia is. It did not affect us at all. There was a lot of interest in it, but from a political viewpoint. It was seen as "proof" that the Russians are bad people.

29. The defence submits that the above sentence should be redacted as the statement is not relevant to a fact in issue and adds nothing to the context of the relationship between the accused and Ms Finke. Furthermore, the statement is unfairly prejudicial. The prosecution submits that the paragraph is not prejudicial, being an innocuous comment made by the accused in the context of a discussion of the Chernobyl disaster and the distance of Australia from Russia and Europe. It contends that there is no risk of unfair prejudice arising from the inclusion of this sentence and that it is relevant as context evidence. I do not consider that the sentence is unfairly prejudicial.

30. In the course of oral submissions counsel for the prosecution submitted that a paragraph which had previously been redacted should not be redacted as it has some probative value. The paragraph in question reads as follows:

Like you, I have a constant weight problem. I am now 86 kg. One year ago I was 77 kg. That was thanks to my ex-fiancé. When she walked out, I couldn't eat or sleep. On average over the last 20 years my weight has been 83 kg. I would like to be 73 kg, but I love everything which has calories. Today I brought [sic] something called FYBRAX. It consists of tablets of fibre and you are supposed to swallow these tablets 20 minutes before a meal. It fills you up, and you don't feel hungry. We will see.

31. It is submitted that this paragraph is relevant for two reasons, the first being because it demonstrates that the accused was prepared to discuss with Ms Finke in detail something that he was unhappy about and secondly that it may be relevant to the evidence of the Lenaghan rifle being left in a culvert together with weight reduction medication. In my view that paragraph is marginally probative and no prejudice is suffered by the accused by reason of it being left in the letter to be produced before the jury.

32. Accordingly in relation to this letter the redactions should be of the second and third sentence in the first paragraph, and the whole of the fifth paragraph.

33. This letter was admitted with redaction by Carruthers AJ. The defence submits that the redaction made in the third paragraph of this letter was appropriate and the prosecution does not contest that redaction. The defence does not object to the admissibility of this letter to provide context to the third letter of 24 December 1987.

34. This letter was partially redacted at the first trial and the defence submits that should the letter be admitted into evidence at the retrial the redaction as made previously is appropriate. However, the prosecution seeks to rely upon a sentence which was previously excised at the first trial and which states "Because I do not have a reference from the Treasury I cannot get a good job". It is submitted by the prosecution that the sentence in question is relevant in that it demonstrates the difficulties that the accused had in obtaining "a good job" in the private sector. The fact that the accused could not get a job in the private sector provided further impetus for him to continue his campaign to be reinstated in the public service. It is submitted that the sentence therefore bears upon his desire to get back into the public service and that the sentence in question and the remaining unredacted portions of the letter are relevant in demonstrating the building aggravation that the accused felt about his failure to obtain what he considered to be a "good job".

35. On the other hand defence argues that as the prosecution has stated in its Amended Case Statement that as of October 1985 the accused was ruled medically unfit to work in the public service, the accused's view, over a year later, about the impact of his lack of reference from the Department of Treasury is not relevant either directly or indirectly to any fact in issue. Furthermore, it is submitted that the statement does not refer to his attempt to find work in the public service. Rather the statement is clearly referring to employment outside of the public service.

36. In my view, the sentence in question is marginally relevant and demonstrates the frankness with which the accused dealt with Ms Finke. The previous redaction should remain with the exception of the above sentence.

37. No written submissions were made by the defence in relation to this letter which was admitted in its entirety by Carruthers AJ at the first trial.

38. This letter was admitted with no redaction by Carruthers AJ and no objection is taken to its admissibility so as to provide context to the third letter of 24 December 1987.

39. This letter was admitted with redactions by Carruthers AJ. Those redactions are not contested by the prosecution. The defence does not object to the admissibility of this letter to provide context to the third letter of 24 December 1987.

40. This letter was admitted with redaction by Carruthers AJ at the first trial. However the prosecution seeks to rely upon the following sentence which was previously excised:

It is terrible to be a physically healthy man, very intelligent, highly educated, only 41, and to feel that society has put you on the scrap heap already.

41. The defence submits that this sentence should remain redacted. It is submitted that what view the accused had about society and himself on 12 January 1987, being almost two years before the killing of Mr Winchester, is irrelevant. It is submitted that it is not capable of rationally affecting the assessment of the probability of the existence of any fact in issue. Furthermore the defence objects to the admission of the statement under s 137 of the Evidence Act. It is submitted that the statement gives rise to the risk of unfair prejudice because the jury would come to the emotional and irrational conclusion that because the accused made this "disaffected statement" in 1987, the view expressed was pervasive and a fundamental element of the accused's "worldview". It is argued that the admission of such a statement would be unfairly prejudicial because it gives rise to the risk that the jury will reason improperly that the accused was a persistently unhappy and bitter person and therefore more likely to kill Mr Winchester in 1989 because of that mental state. In this regard it is argued that the psychological states of humans fluctuate over time and that the jury might place undue weight on this statement.

42. On the other hand the prosecution submits that the sentence demonstrates the frustration and resentment that the accused was experiencing because he did not have employment. It is submitted that the sentence shows the importance he placed on being employed and therefore explains his ongoing campaign to be reinstated in the public service. It is further argued that what is revealed in the sentence is part of the build-up of frustration that the accused felt commencing when he first attempted to re-enter the public service and prevailing throughout his campaign until 10 January 1989. It is submitted that the words used provide an illustration of the nature of the state of mind and frustration of the accused which continued as his campaign for employment failed and is reflected in his comments to Ms Vick made approximately a year later when he said "I'll probably have to kill someone to get the attention paid to the injustice that's been done to me". It is contended that the timing of the sentence in the 12 January 1987 letter, being two years prior to the murder of Mr Winchester, is in fact probative and will enable the jury to place the third letter of 24 December 1987 in context in that the expression of anger towards police was not a fleeting or temporal anger, but an anger that developed over time.

43. I consider that the sentence in question is probative and does not carry with it any unfair prejudice and accordingly should not be redacted. Subject to that the letter should be admitted into evidence in the same form as at the first trial.

44. These letters were admitted with redactions by Carruthers AJ at the first trial, which redactions are not contested by the prosecution. The accused does not object to the admissibility of these letters to provide context to the third letter of 24 December 1987.

45. There appears to be some confusion about this letter which begins "I was very happy to get your letter of 4/5 yesterday". In their written submissions the defence states that the letter was ruled inadmissible by Carruthers AJ. However, it is clear that a letter dated 12 May 1987 was admitted, with reactions, into evidence at the first trial. Exhibit 245N (at trial transcript page 3319) is described as "letter dated 12.5.87 from which irrelevant material has been omitted". Nevertheless, at page 3260 of the trial transcript, Carruthers AJ is recorded as stating "As to the letter of 12 May 1987, I had in mind rejecting the whole of it". The response of the prosecutor was "Yes, I have no problem with that. Again, I would just like to lead the fact that there was such a letter".

46. However, notwithstanding that the defence argues that the letter was ruled as inadmissible at the first trial, it is submitted that if the third letter of 24 December 1987 is to be admitted then part of the letter of 12 May 1987 should also be admitted into evidence. Defence argues that the words appearing in the fifth paragraph "I will tell you my details again too. Born Melbourne 29.9.45, British ancestry, 3 sisters, economics degree, working as an insurance salesman..." should be admitted, as should the whole of paragraph 6 which states as follows:

I am still working at AMP, but I am very excited. Tonight I got a phone call from Berry Jorgitis. She is the local manager for AFT (investment advisers). She wants me to come for a 2nd interview tomorrow at 9. I would like this job better than AMP.

47. In written submissions the prosecution states that there was a second letter dated 12 May 1987 which begins "You have read widely on Australia ..." and which letter was not admitted by Carruthers AJ at the first trial. The prosecution does not seek to lead this second letter on the retrial. However, it submits that defence's claim that the letter bearing the date 12 May 1987 was ruled to be inadmissible, relates to this second letter and not to the first letter referred to above. In this regard it does appear to me that the prosecution's submissions are correct and that a letter dated 12 May 1987 commencing with the words "I was very happy to get your letter of 4/5 yesterday" was admitted into evidence with the third sentence of the first paragraph being redacted. In addition to that redaction I am of the view that the whole of the second paragraph and the third paragraph are totally irrelevant and should also be redacted.

48. This letter was admitted with redactions by Carruthers AJ at the first trial and the prosecution does not contest those redactions. The accused does not object to the admissibility of this letter to provide context to the third letter of 24 December 1987.

49. This letter was admitted with redactions by Carruthers AJ at the first trial. The prosecution does not contest those redactions. However the defence submits that a further two redactions ought to be made. The first such redaction is the sentence "You are so very natural, I cannot understand why some German man has not carried you off to his cave" appearing as the last sentence in the penultimate paragraph. The prosecution does not oppose the redaction of that sentence.

50. In addition, however, the defence submits that the final paragraph, which is a statement by the accused about putting on more weight, should be redacted on the basis that the paragraph is irrelevant and additionally because the accused's critical comments about excess weight may cause offence within the jury. On the other hand the prosecution contends that it is erroneous to construe the opinion of the accused about his own weight as being directed towards overweight people generally and it is argued that the paragraph does provide further context to the relationship between the accused and Ms Finke in that it shows the accused's candour with her. There is nothing prejudicial about the final paragraph and I see no reason to redact it.

Letters of 4, 19 and 21 August and 17 October and 21 November and 1 December 1987

51. With the exception of the letter of 1 December 1987, which was admitted in its entirety, these letters were admitted with redactions by Carruthers AJ in the course of the first trial. The prosecution does not contest those redactions. The defence does not object to the admissibility of these letters, as previously redacted, so as to provide context to the third letter of 24 December 1987.

52. This letter was admitted with redactions by Carruthers AJ on 27 July 1995. However on 15 September 1995 and after the accused had raised the issue of good character during his cross-examination the prosecution sought to adduce in evidence the fourth paragraph of the letter which had previously been redacted. The trial judge accepted that the accused had raised good character and allowed that paragraph to be admitted into evidence. The prosecution now seeks to rely upon the fourth paragraph of the letter which reads as follows:

My father died. I didn't go to the funeral, because I felt nothing. He killed all the love in me years ago. If I read in the paper that my mother was knocked over by a bus, I would laugh. They made my childhood a psychological hell

53. The prosecution seeks to rely upon this paragraph, in part to support tendency incident 7 of Tendency 4, being a threat to kill his parents made on 26 December 1986. It is argued that the state of mind of the accused as it appears from the paragraph in question makes it more likely that tendency incident 7 occurred. Furthermore, it is argued that the paragraph provides context for the first two paragraphs of the third letter of 24 December 1987 in that if considered in isolation the comments made by the accused in those paragraphs would appear to be out of context. Finally, it is submitted that the paragraph again shows the accused's candour with Ms Finke, upon which the prosecution relies for the jury to assess the contents of the third letter of 24 December 1987.

54. Whilst I accept that the paragraph is relevant to some degree on the basis asserted by the prosecution, it nevertheless appears to me that the statement is prejudicial. It is not necessary for the paragraph to be admitted for the threat relied upon as being part of incident 7 to be understood. Accordingly on balance, I consider that the fourth paragraph of the letter should, as determined at the first trial by Carruthers AJ, be redacted.

55. As stated above, the accused wrote three letters to Ms Finke on 24 December 1987. The first letter was partially redacted at the first trial and the last four paragraphs of the letter were deleted. However, the prosecution now seeks to argue that the third and fourth paragraphs of the letter, which were redacted at the first trial, should no longer be redacted. Those paragraphs read as follows:

I am very glad to hear that I am escape for you in a positive sense. Yes, you are right, I am pessimistic about most things (jobs, relationships, people). I know the self-fulfilling theory, and it works, but you have to make it work. There is a lethargy in me at the moment. Events of the past have made it worse and worse. I used to be positive, even in the face of difficulties. Now I have almost given up. People are shits and the world is a sewer.

I stopped work at the AMP Society because a man there was very rude to me. I wanted to punch him. I have a good reference from the Sales Manager. If I had stayed something would have happened to spoil the reference. The reference was more important than the job. I have applied for other jobs without success. I am hoping for a 6 month trial in the Public Service. I will know by late January.

56. The prosecution submits that the above paragraphs should not be redacted as they are relevant in providing an insight into the accused's state of mind at the time. It is submitted that the third paragraph shows frustration, exhaustion, disappointment and resentment and that the fourth paragraph shows his ongoing campaign to get a job and his desire specifically to get a six-month trial in the public service. The prosecution submits that the state of mind expressed in these paragraphs is consistent with the state of mind expressed in earlier letters and thus is evidence that such state of mind was consistent and not fleeting. Furthermore it is contended that like other letters these two paragraphs are relevant to the relationship between the accused and Ms Finke as they demonstrate the accused's candour and willingness to reveal his vulnerability. These paragraphs are capable of providing further context for the nature of the relationship that existed between the accused and Ms Finke at the time that the accused drafted the third letter of 24 December 1987.

57. However, the defence submits that the third paragraph which contains negative comments about the accused's attitude and feelings was written late at night while the accused was alone and in an isolated location. It is submitted that it cannot be assumed that the accused's attitude as expressed in this letter was pervasive in that it bears upon the likelihood that he killed Mr Winchester 11 months later. The defence submits that the paragraph is not relevant to the issue of the accused's desire to get back into the public service and his difficulty in doing so as is submitted by the prosecution. The defence submits that the paragraph merely mentions the accused's attitude about "jobs" and it cannot be inferred that this term was meant by the accused to be limited to public service positions. Furthermore, the defence submits that the third paragraph contains statements about the accused's work at the AMP Society in 1987, and thus is not relevant to, and does not give any context to, the third letter dated 24 December 1987.

58. In my view, in all the circumstances, the third and fourth paragraphs are of minimal relevance and I see no reason to take a different view than did Carruthers AJ in relation to this document. In relation to the second letter of 24 December 1987, I observe that the entirety of the letter was not admitted into evidence and the letter is not relied upon by the prosecution upon the retrial.

59. It is convenient to deal with the letter of 4 January 1989 first, as the admission of the letter of 20 June 1988 is dependent upon the admissibility of that letter. The letter 4 January 1989 states as follows:

Irene,

Stop writing to me. I do not want to hear from you again. You are a stupid ugly bitch.

I will not see you in February, March or any other time. Stay away! If you "bump into" me, I will bash you. Is that clear? Do you want to be killed?

PISS OFF! YOU STUPID BITCH!

60. The letter of 4 January 1989 was not initially admitted into evidence at the first trial. However, after the prosecution argued successfully that the accused had raised the issue of good character in his evidence, Carruthers AJ ruled that the entire letter was admissible and admitted it as Exhibit 295.

61. On behalf of the accused it is submitted that the letter should not be admitted into evidence. First it is submitted that the letter post-dates the third letter of 24 December 1987 and is therefore not capable of providing context to that letter and thus is irrelevant. Further it is submitted that even if the letter is relevant, s 137 of the Evidence Act precludes its admission as its probative value is outweighed by the danger of unfair prejudice to the accused.

62. In response the prosecution concedes that the letter does not provide context to the third letter of 24 December 1987 but submits that that is not the basis upon which it seeks to tender the letter. It is submitted first that the letter is relevant to prove tendency incident 17 which is relied upon in support of Tendency 4, which tendency has been ruled to be admissible. The substance of incident 17 is that on 20 June 1988, the accused wrote to Ms Finke to tell her that he had no interest in seeing or hearing from her again. After Ms Finke continued to write to him, the accused sent her the letter of 4 January 1989. It is submitted by the prosecution that the letter is relevant to show the tendency of the accused to threaten to shoot or kill people whom he perceives to refuse to accede to his will or demands. It is submitted that it is apparent that the basis of the threat to "bash" and/or to kill Ms Finke was made because, contrary to the demands of the accused, Ms Finke had not left him alone. Upon this basis, it appears to me to be clear that the letter in question is relevant and probative. Furthermore, the prosecution relies on the fact that the letter of 4 January 1989 was written only six days before the murder of Mr Winchester and although it does not contain a threat against him, it is reflective of a 'murderous state of mind' which the prosecution contends had been building up over a considerable period of time.

63. Nevertheless, the letter is highly prejudicial in that it reveals behaviour on the part of the accused that the jury may regard as despicable, and that is all the more so when one considers the apparent degree of trust that was generated between the accused and Ms Finke as revealed in the correspondence to which I refer above. Of course, probative evidence is often highly prejudicial to an accused, but the question to be determined by me in consideration of the balance between probative and prejudicial is whether or not such prejudice is unfair. In consideration of that balance I conclude that the communication is so prejudicial that it should not be admitted into evidence. It follows that the letter of 20 June 1988 is of no relevance.

(a) That the third letter to Ms Finke dated 24 December 1987 be admitted into evidence subject to the redaction of:

• (i) the third sentence of the first paragraph commencing "She expresses this ....";
• (ii) the last three sentences of the second paragraph commencing "I do not think ....";
• (iii) the second last sentence of the last paragraph commencing "I sympathise with ....".

(b) That the letter of 1 July 1986 be admitted into evidence in its entirety.

(c) That the letter of 5 September 1986 be admitted into evidence subject to the redaction of:

• (i) the two last sentences in the first paragraph;
• (ii) the fifth paragraph.

(d) That the letter of 23 November 1986 be admitted into evidence subject to the redaction of:

• (i) the words commencing "On the medical certificate" through to and including "personality disorder";
• (ii) the second sentence of the third paragraph commencing "But I discovered ....".

(e) That the letter of 12 January 1987 be admitted into evidence subject to the redaction of:

• (i) the first three sentences of the third paragraph;
• (ii) the first five sentences and the last four sentences of the fourth paragraph.

(f) That the letter of 12 May 1987 commencing "I was very happy to get your letter of 4/5 yesterday" be admitted into evidence subject to the redaction of:

• (i) the third sentence of the first paragraph;
• (ii) the second and third paragraphs.

(g) That the letter of 6 July 1987 be admitted into evidence subject to the redaction of:

• (i) the whole of the second paragraph;
• (ii) the last sentence of the third paragraph.

(h) That the letter of 6 December 1987 be admitted into evidence subject to the redaction of the second, third, fourth and last paragraphs.

(i) That the first letter of 24 December 1987 be admitted into evidence subject to the redaction of the last four paragraphs.

(j) That the letter of 4 January 1989 not be admitted into evidence.

65. That until further order the reasons for this ruling are not to be published other than to the parties and their legal representatives.

I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam.