R v Efandis

1 The accused is charged with the murder of George Marcetta at Bellfield on 9 September 2004, and also with intentionally and without lawful excuse damaging by fire a house owned by herself and Marcetta at Bellfield. I have been asked to rule as to the admissibility of the whole or parts of the evidence of the following witnesses: Alexander McCormack; Ioanna Marcetta; Anathasia Marcetta; Tomaslav Dragojevic; and Detective Senior Constable Anthony White. In the course of submissions issues were raised also as to the admissibility of the evidence of Anthony Wright, Bin Bao Lawrence Dong and Zoran Obradovic. However those issues were resolved in the course of discussion with counsel.

2 Mr Marcetta had had a relationship with the accused for approximately two years before his death. It is part of the Crown case that, over that period, the accused involved herself significantly in the personal and business life of Marcetta, to the extent where she acquired either ownership of or control over his property and financial affairs. In particular, she became the sole registered proprietor of the property at Bellfield to which, on the Crown case, Marcetta had made a substantial financial contribution. In addition, she became a director of his painting business, and was the joint owner with him of some bank accounts.

3 The Crown intends to adduce evidence as to the circumstances in which Mr Marcetta revoked his will in July 2003. Previously, on 14 August 2002, Mr Marcetta had executed a will, by which he had left the whole of his residuary estate to his daughter. On 15 July 2003 he consulted his solicitor, Mr Alexander McCormack, who conducted practice in Dandenong. On Mr Marcetta's instructions, Mr McCormack prepared a deed of revocation of the will, which was executed by Mr Marcetta. Thus Mr Marcetta became intestate. The Crown case is that that intestacy should be considered by the jury in the context of the acquisition by the accused of the sole proprietorship of the house property at Bellfield, and her directorship in the painting business. The Crown case is that the accused thus acquired a strong position to make a substantial claim on the assets of Mr Marcetta, and this constituted a motive for his murder by the accused.

4 As part of that case the Crown seeks to adduce evidence by Mr McCormack as to the explanation given to him by Mr Marcetta why he wished to revoke his will. In his statement to the police, Mr McCormack stated that he asked Marcetta why he wished to revoke the will and thus be intestate should he die. According to Mr McCormack, Marcetta responded that he "wanted to keep his new lady happy". Mr McCormack was cross-examined on that evidence at the committal proceeding. He stated:

"I asked him why (he wished to revoke his original will), but all he would say, he wanted to keep the lady happy. He didn't tell me her name, he told me nothing more about her, that's all he said."[1]

5 In that evidence Mr McCormack agreed that Mr Marcetta did not say that he had been put up to revoking his will by anyone, including the new lady in his life. In a voir dire before me, Mr McCormack essentially confirmed the evidence which he had given at the committal. He also stated that when Marcetta told him that he wished to revoke his will in order to keep his new lady happy, he (Mr McCormack) explained to Marcetta that if he died without a will he was essentially subject to the statutory scheme of distribution of intestate estates. Mr McCormack stated that Mr Marcetta was not concerned with that advice, and that he was very definite in his instructions that his previous will be revoked.

6 Mr Thomson, who appears on behalf of the accused, has objected to that evidence on the grounds that it is irrelevant. Mr Champion SC, who appears to prosecute, contends that the evidence is not hearsay, and that it is relevant to an issue in the trial.

7 It is trite law that evidence of an out of court statement by a third party is inadmissible if that evidence is adduced to prove the truth of the statement. However, that evidence may not be hearsay, and thus may be admissible, if the statement is led to establish the state of mind of the third person, and if that person's state of mind is relevant to a fact in issue in the case. Thus in Walton v R[2], the High Court held that statements by the deceased, shortly before her death, as to her intention to meet the accused at a particular location, were not hearsay, and were admissible, to prove the deceased's state of mind shortly before her death. In reaching that conclusion, the majority, Wilson, Deane and Dawson JJ adopted as correct the following statement of principle from the judgment of King CJ, of the Full Court of South Australia, in R v Hendrie[3]:

"It is well established law that a person's state of mind may be proved by contemporaneous statements made by that person. Such statements are not hearsay because they are not adduced for the purpose of proving the truth of the statements. They are original circumstantial evidence tending to establish the state of mind. Their evidentiary value is derived from experience of human behaviour which indicates that people tend to express their intentions or their states of mind. For that reason what a person says is some evidence of what he is thinking. It is circumstantial evidence which may form a basis for an inference as to his intention or other state of mind."

8 Accordingly, in an appropriate case, it may be admissible to prove, by an out of court statement by a deceased person, the reason why the deceased had made a particular disposition in his or her will. That principle is illustrated by the decision of the High Court in Hughes v National Trustees Executors & Agency Co of Australasia Limited[4], which was referred to in the judgment of majority in Walton v R[5]. Hughes' case concerned a claim by an adult son for provision out of the will of his late mother under Part 4 of the Administration and Probate Act 1958 (Vic). The High Court held that statements by the testatrix, that her son had been guilty of misconduct towards her, were admissible, not to prove the truth of those statements (that the son had been guilty of such misconduct), but " ... as original evidence to prove the knowledge, motive or other state of mind of the testatrix ... ".[6]

9 In my view, consistent with the above authorities, evidence as to statements by a deceased, as to why he revoked his previous will, is capable of constituting evidence from which a jury might infer the state of mind of the deceased in revoking his will. As such the evidence would not be adduced to prove the truth of the statement made by the deceased out of court, but, rather, as circumstantial evidence to establish his state of mind when revoking the will. Accordingly, the statement of Mr Marcetta to McCormack, that he was revoking his will because he wanted to keep his new lady happy, is evidence capable of proving the state of mind of the deceased when he revoked his will, and thus would not be inadmissible as hearsay.

10 The critical question is whether, on the case which the Crown intends to make, the state of mind of the deceased, in revoking his will, is a relevant fact in issue in the case. As Hayne J observed in Kamleh v R[7], where an out of court assertion is tendered to demonstrate that the person making the assertion then had a particular intention, "the line between proof of the fact asserted and proof of the fact that the assertion was made is difficult to draw". The answer to that question depends on the relevance of the proof of the state of mind of the deceased when he told Mr McCormack as to the reason why he wished to revoke his previous will.[8]

11 The Crown case is that by September 2004 the accused was in a strong position to claim the assets of Marcetta should he die, and that thus she had a motive to kill Mr Marcetta. Plainly, if the Crown only sought to rely on the fact and effect of the revocation by Mr Marcetta of his will in July 2003, the evidence of Mr McCormack, as to why he revoked the will, would not be relevant. However, it would seem that the Crown seeks to go further than simply establishing the existence of circumstances, as at September 2004, which provided a financial motive to the accused to kill Mr Marcetta.

12 Mr Champion has accepted that the evidence of Mr McCormack does not, on its own, establish that the accused influenced, or prevailed upon, Marcetta to revoke the will. However, Mr Champion submitted that the evidence is relevant to establishing an "involvement" by the accused in the revocation by Marcetta of his will, as part of the progressive involvement by the accused in the financial affairs of Marcetta. He submitted that those circumstances were existing by the time the accused formed the intention to kill Marcetta.

13 The argument that the evidence of Mr McCormack discloses an "involvement" by the accused in the revocation by Marcetta of his will masks, rather than reveals, any potential relevance of that evidence to the issues in this case. Mr Champion, when pressed, submitted that the evidence disclosed that the accused had "some connection with" the revocation by the deceased of his will. However, that submission does not, in my view, shed any further light on the potential relevance of the evidence which is sought to be adduced from Mr McCormack. Firstly, at most the evidence establishes the state of mind of the deceased. The fact that the deceased, by revoking his will, perceived that he would be pleasing his lady friend (the accused) does not, of itself, establish that the accused played any role in persuading the deceased to revoke his will. Indeed, if the evidence were admitted to prove the state of mind of the deceased, it would only provoke speculation on the part of the jury as to why the deceased wished to keep his "lady" happy.

14 Furthermore, even if the Crown were able to prove that the accused had otherwise "insinuated" herself into the financial and personal affairs of the deceased, the evidence of Mr McCormack would not be probative of any deliberate attempt by the accused, at the time the will was revoked, to access the assets of Marcetta on his death. In particular, I note that it will not be put by the Crown that at the time at which Mr Marcetta revoked his will, the accused had then formed an intention to kill him and thereby profit from his death. In other words, the Crown will not be putting that the revocation of the will was part of a plan which had then been hatched by the accused to access his assets by killing Marcetta.

15 In a broad sense, it may be argued that the evidence of Mr McCormack reveals something about the relationship between Marcetta and the accused, in particular by establishing that Marcetta perceived that the accused would be kept happy if he were to revoke the will which he had previously made in favour of his daughter. However, as acknowledged by Mr Champion, the evidence does not establish that the deceased had been prevailed upon by the accused to revoke the will. Nor does it advance the proof by the Crown that, at the time of the deceased's death, the accused had a financial motive to kill him. The fact of the revocation of the will, and proof of the knowledge of the accused of that circumstance, may be relevant in proving the motive asserted by the Crown. However, the evidence of Mr McCormack, as to why the deceased revoked his will in June 2003, is not relevant to establishing either of those two facts.

16 In those circumstances, I accept the submission of Mr Thomson, on behalf of the accused, that the evidence which the Crown seeks to adduce from Mr McCormack, as to the statement to him by Marcetta as to why he wished to revoke his previous will, is irrelevant and therefore inadmissible.

17 Ioanna Marcetta was the former wife of the deceased. She had married Mr Marcetta in 1968. They had one daughter, Athanasia. They separated during the 1970s, and then reconciled. Subsequently, Mr and Mrs Marcetta separated again in 1999, and ultimately they divorced.

18 In about 2000 Ioanna Marcetta met the accused. The Crown wishes to adduce evidence that thereafter Mrs Marcetta and the accused had a number of conversations. In the course of those conversations the accused questioned Mrs Marcetta about Mr Marcetta and took an interest in him. Subsequently, after Ioanna Marcetta returned to Australia from Athanasia's wedding in Greece in October 2002, the accused asked her about the house in Dandenong, and said that she had seen the papers for the house in Marcetta's name while she was cleaning that house. The accused wanted to know if there were any other children. She said that if she "did something with Marcetta" she wanted to know if anyone else might "come along and ask for some property" (I interpolate that the Crown, correctly, construes this conversation as meaning that the accused was concerned that if she entered into a financial or other relationship with Marcetta, there might be other persons who might make a claim on his property).

19 The Crown seeks to adduce that evidence as relevant to the issue of motive. In particular, Mr Champion submitted that the evidence discloses that in late 2002 the accused expressed an unusual interest in the property of Mr Marcetta, by asking whether there were other children than Athanasia who might want to make a claim on the property, in the event that she entered into some sort of relationship with Marcetta.

20 In response, Mr Thomson submitted that the evidence is irrelevant. He submitted that the discussions between Ioanna Marcetta and the accused in 2002 about the financial status of Marcetta has no probative value in proving the formation, later, of an intention by the accused to kill Marcetta for financial gain. Mr Thomson submitted further that the evidence is susceptible of an innocent explanation, namely, that it was simply a prudent inquiry by the accused before she entered into a financial and personal relationship with Mr Marcetta.

21 I agree with the submission of Mr Thomson. As I have stated, it is not part of the Crown case that by 2002, or 2003, the accused had then formed an intention to dispose of the deceased and thereby access his finances. Thus, while the Crown case is that, by the time at which Marcetta was killed, the accused had a motive to kill him, it is not part of the Crown case that that intention had been formed some two years earlier. At most, the evidence would indicate that at an early stage in the relationship between the accused and Marcetta, the accused's approach to the relationship was, at least in part, materialistic. However, in my view, that evidence would not be probative of the motive ultimately sought to be established by the Crown, namely, that at the time of his death the accused was in a position to financially benefit from his deceased. Accordingly, I am of the view that the evidence sought to be adduced from Mrs Marcetta is irrelevant, and thus inadmissible.

Evidence of Ioanna Marcetta and Athanasia Marcetta

22 The Crown also seeks to adduce evidence from Ioanna Marcetta and Athanasia Marcetta as to the nature of the relationship between Mr Marcetta and Athanasia after the latter's wedding in Greece in October 2002 and until Mr Marcetta's death in September 2004.

23 As a preliminary point, I note that the evidence of Mrs Marcetta would be particularly limited in that respect. The last occasion on which Mrs Marcetta saw the deceased was at her daughter's wedding in Greece in October 2002. She last spoke to Mr Marcetta on the telephone a couple of months after they had returned to Australia. Accordingly, any evidence by Mrs Marcetta as to the relationship between Mr Marcetta and his daughter, from that time until his death, could only have been hearsay.

24 The Crown seeks to adduce evidence from Athanasia Marcetta as to the continuing good relationship between herself and her father until his death. In her statement to the police Athanasia Marcetta states that when her father came to Greece for her wedding, the family had a very good and happy time. He returned to Australia on happy terms with his daughter. However, as his association with the accused progressed, the deceased became more distant from Athanasia. He did not call her on events such as her birthday and he only telephoned once when her son was born. Athanasia states that although she and her father had some disagreements over the telephone, they never had an acrimonious argument, such as is alleged by the accused in her record of interview.

25 The Crown seeks to adduce the evidence of Athanasia Marcetta in order to rebut the statement by the accused, in her interview with the police, that when the deceased returned from Greece, after attending his daughter's marriage, he was not talking to his daughter because they had had a bad argument. The accused further stated that when Athanasia telephoned her father from Greece, he had a further argument with her, and told her not to telephone again. The accused stated to the police that as a consequence of that discussion the deceased went into his bedroom, took hold of a copy of his will, and ripped it up.

26 In the course of these reasons, I have already ruled that evidence as to the reason why the deceased revoked his will is irrelevant. Thus, while the evidence which the Crown seeks to lead from Athanasia Marcetta may rebut statements by the accused to the police as to why Marcetta revoked his will, that evidence, nonetheless, is not relevant to an issue between the parties. At most the evidence, if accepted, establishes that the accused did not tell the truth to the police, when she maintained to the police that Marcetta had revoked his will because of an acrimonious disagreement which he had had with his daughter. However, it is not sufficient for the Crown to establish that the accused told an untruth to the police. In order to be admissible the evidence must go to a relevant issue in the trial. Mr Champion does not seek to contend that the evidence, as to such an untruth, would constitute an implied admission of guilt, as evidencing a "consciousness of guilt" on behalf of the accused. In my view he is correct in doing so. At most the evidence of Athanasia Marcetta relates to the credibility of the accused in what she told the police. As such, the evidence would not be admissible.

27 Thus, in my view the evidence of Ioanna Marcetta and Athanasia Marcetta, as to the relationship between Athanasia Marcetta and the deceased in the two years before his death, is irrelevant. I also agree with the further submission made by Mr Thomson that, if the evidence did have any probative value, it would be significantly outweighed by its potential prejudicial effect. If I were to admit the evidence as to the nature of the relationship between Athanasia Marcetta and her late father during the two years before his death, there is a substantial potential for the trial to be diverted by involving the agitation of family issues which are remote from the central questions in this case. Those collateral issues, while of little probative value, would distract the jury from their essential task, namely, to determine whether the Crown has established the guilt of the accused beyond reasonable doubt. Furthermore, it is clear from their statements that both Ioanna Marcetta and Athanasia Marcetta do state that, in the two years after Athanasia's wedding, the deceased had become somewhat estranged from them. Both Athanasia and Ioanna Marcetta, in their statements, blame the accused for the cooling of their relationship with the deceased. That evidence would be hard to disentangle from the evidence which the Crown seeks to adduce, namely, that there had not been any gross rift between the deceased and his daughter by the time he revoked his will in July 2003. If that evidence did intrude into the trial, it would have the potential to operate unfairly to the accused. Accordingly, if the evidence which the Crown seeks to adduce from Ioanna Marcetta and Athanasia Marcetta were otherwise relevant, in my view its probative value would be significantly outweighed by its prejudicial potential, and I would exclude it in the exercise of my discretion.

28 Mr Dragojevic was a cousin of Mr Marcetta. He kept in touch with Mr Marcetta until approximately two months before he died. The Crown wishes to adduce evidence from Mr Dragojevic that he spoke with Mr Marcetta about one month before he died. Mr Marcetta spoke about how his business was going well, and he spoke about his daughter's wedding and that she was going to have a baby. The Crown seeks to rely on that evidence as reflecting on the nature of the relationship between Mr Marcetta and his daughter.

29 In my view, the evidence of Mr Dragojevic is irrelevant and inadmissible. First, as I have already ruled, evidence as to the relationship between Mr Marcetta and his daughter is irrelevant to the issues between the Crown and the accused. Secondly, in any event, I agree with Mr Thomson that the evidence of Mr Dragojevic is of little effect. It says little about the relationship between the deceased and his daughter. At most it was relevant to the state of mind of the deceased towards his daughter one month before he died. That evidence, plainly, would not relate to the circumstances in which the deceased had revoked his will in July 2003 (if such evidence were admissible in any event) or to any other issue in the trial.

30 The final question concerns the admissibility of evidence of Detective Senior Constable White, who is a member of the Arson and Explosive Squad, as to a conversation which he had with the accused on 10 December 2004. The Crown relies on that conversation as evidence of knowledge by the accused, at that time, of the fact that Mr Marcetta had been drugged before the house at Bellfield was set on fire, when that circumstance was not public knowledge. Mr Thomson, on behalf of the accused, submits that that evidence is not admissible, because it does not comply with the requirements of s 464H(1) of the Crimes Act.

31 At the time of the conversation, Detective Senior Constable White was one of the investigators responsible for investigating the circumstances of the fire. He had arranged that the accused's daughter, Atalanti Efandis, attend Heidelberg Police Station in order that he might take a statement from her. For that purpose Atalanti attended at the police station on 10 December. The accused also attended, having apparently driven Atalanti to the station. She remained in the foyer of the police station while Detective Senior Constable White interviewed, and took a statement from, Atalanti. In the course of taking that statement, Detective Senior Constable White told Atalanti that the death of George Marcetta was being investigated as a murder as he (Mr White) knew that Marcetta was not in a condition to light the fire himself. He did not disclose to Atalanti the reason why the police considered that Marcetta had not been in a condition to light the fire, and he did not state to Atalanti that drugs had been administered to the deceased before the fire. In the course of the interview, Detective Senior Constable White was particularly concerned to ascertain the name of the owner of an unidentified dark Ford sedan, which had been in the driveway of the premises on the evening before the fire.

32 After Mr White had obtained the statement from Atalanti, they returned to the foyer of the police station, where the accused had remained. The accused, Atalanti and White then went outside together. Atalanti and the accused had a short conversation, in the hearing of White, to the effect that the police were interested in the owner of the dark Ford which had been seen in the driveway of the premises. In the course of that conversation Mr White again mentioned, this time to the accused and Atalanti, that Marcetta had not been in a condition to light the fire himself. During the conversation the accused asked Mr White whether the Ford motor vehicle which had been seen at the premises was black. Mr White responded that it could have been a dark green, brown or blue because the street lighting could make any of those vehicles appear to be dark. Both the accused and Atalanti stated that they did not know anyone who drove a dark Ford. Mr White then informed the accused that the matter was being investigated as a murder. The accused then asked Mr White: "Is that because he was drugged"? Mr White responded: "I know he wasn't in a condition to light the fire himself". Mr White states that, at that stage of the investigation, no police member, or other person with knowledge, had told the accused or any other person who associated with the accused that Marcetta had been drugged at the time of the fire.

33 At the voir dire before me, and also at the committal proceeding, Mr White stated that at the time at which he spoke to the accused on 10 December 2004, she was definitely a suspect in the murder of George Marcetta. Mr White stated that he understood the requirements of s 464H of the Crimes Act, but he did not consider that the statement made to him by the accused had to be confirmed in a recorded interview, because he understood that s 464H only applied to a procedure in which an accused is being specifically questioned about an offence.

34 Mr Thomson submits that the evidence of Mr White, that the accused asked him "Is that because he (the deceased) was drugged"?, constitutes an admission by the accused of knowledge that the deceased had been drugged before the fire was lit. That admission was made by the accused at a time at she was suspected of having committed the murder of Marcetta. Accordingly, he submitted that the evidence was inadmissible pursuant to s 464H(1)(e) of the Crimes Act. The relevant portion of that section provides:

"(1) Subject to subsection (2), evidence of a confession or admission made to an investigating official by a person who-

of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless-

(e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was recorded by audio recording or audiovisual recording."

35 The applicability of s 464H(1)(e) raises two questions. The first question is whether the statement made by the accused to Mr White constituted an "admission". The second question is whether it is a requirement of s 464H(1) that the admission be made during a process of questioning undertaken by the police of the suspect, and, if so, whether in the circumstances of this case such a process was being undertaken by Mr White with the accused at the time at which the relevant statement was made by the accused.

36 Both questions were considered by the Court of Criminal Appeal in R v Hazim[9]. In that case Coldrey J, who delivered the leading judgment, considered that the phrase "confession or admission" should be given its generally accepted meaning in the field of criminal law. Thus his Honour stated[10]:

"The accepted distinction between confessions and admissions is that the former involve admissions of actual guilt of the crime, whereas the latter relate to key facts which tend to prove the guilt of the accused of such crime. The category of admissions includes relevant false denials."

37 Mr Thomson submits that the statement by the accused to Mr White - that the deceased had been drugged - constituted an admission by her of knowledge of a particular fact relating to the crime. Mr Champion did not argue to the contrary. The relevance of the statement by the accused to Mr White is that it disclosed that, at that time, she held particular knowledge as to the circumstances in which the deceased had died, which knowledge, it would be argued, could only have been known to her if she had been implicated in his death. In that sense, it may be arguable that the statement by the accused to Mr White did not, in a strict sense, constitute an admission by her, but rather reflected her then state of knowledge[11]. However, by the same token, the statement by the accused to Mr White, as to her knowledge that the deceased had been drugged, did impliedly contain an admission by her of her knowledge of that fact. The underlying purpose of the regime, constituted by s 464H, is to protect persons, suspected of offences and who are later charged, by ensuring that admissions alleged against them are genuine and voluntary and have not been unfairly obtained.[12] In light of that purpose, in my view a narrow construction should not be adopted of the phrase "confession or admission". In this case, I accept that the statement attributed to the accused does constitute an admission by her as to her knowledge of a particular relevant circumstance relating to the death of the deceased. It was thus an implied admission by the accused in respect to the offence. In this context, I note that Coldrey J, in Hazim, included false denials in the category of admissions. In essence, a false denial may constitute an implied admission of guilt. By parity of reasoning, the implied admission contained in the statement made by Ms Efandis to Mr White does constitute an "admission" for the purposes of s 464H(1).

38 The second question relates to the requirement that, for s 464H(1) to apply, the relevant confession or admission must be made in the course of questioning between police and the suspect. In my view, it is clear from the judgment of the Court of Criminal Appeal in Hazim that s 464H only applies where such questioning is undertaken. There Coldrey J accepted as correct the submission made on behalf of the Crown " ... that the subsection relates to confessions and admissions which are directly related to the criminal investigation of the offence and which have emerged as a result of the questioning process permitted pursuant to s 464A(2) of the Crimes Act".[13] Similarly Brooking J, who with Teague J agreed with the judgment of Coldrey J, held that, as a matter of its proper construction, the operation of s 464H(1) " ... is confined to confessions or admissions made either before the commencement of or during 'questioning'".[14] The court in Hazim thus held that it was implicit, from the content of subparagraphs (c), (d), (e) and (f), that the prohibition in s 464H(1) only applies to confessions or admissions which are made by a suspect in the course of questioning relating to the relevant offence.

39 Mr Champion did not concede that the statement by the accused to Mr White was made in the course of questioning by Detective Senior Constable White, but he did not contend to the contrary. In my view, at the time of the relevant conversation Mr White was undertaking questioning both of Atalanti and, then, of the accused, as to the ownership of the relevant vehicle. It is true that the conversation was informal, and that Mr White did not consider himself to be undertaking any interrogation of the accused such as might occur in an interview setting. Nonetheless, he did seek information from the accused as to an important fact of which the police were aware, in circumstances in which the accused was the prime suspect of the murder then under investigation. Initially, the conversation between the accused and Mr White was instigated by the accused, who asked Mr White a number of questions relating to some aspects of the fire. However, the relevant part of the conversation occurred after Mr White had asked specific questions of the accused relating to the ownership of the dark vehicle. After the accused answered that question, Mr White then informed the accused that the matter was being investigated as a murder. It was that statement by Mr White which provoked the response by the accused "Is that because he was drugged"? In my view, bearing in mind the objectives of s 464H, that comment was made by the accused in the course of questioning of a suspect, and thus falls within the ambit of s 464H(1). Accordingly, by the terms of that section, the evidence as to the making of that statement by the accused to Mr White is inadmissible, unless it may be admitted under s 464H(2).

40 Section 464H(2) provides:

"(2) A court may admit evidence of a confession or admission otherwise inadmissible by reason of subsection (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances-

41 Mr Champion submitted that I should admit the evidence under that provision because the circumstances in which the admission was made by the accused to Mr White are exceptional. He submitted that it is significant that the accused had not been invited to attend the police station, but that she did so of her own accord. The conversation which took place later between herself and Mr White, as to which the Crown seeks to lead evidence, was not the result of a deliberate process of questioning undertaken of her by Mr White. Rather, when the accused, Atalanti and Mr White went outside the police station, it was the accused who asked Mr White two questions relating to the fire. Having answered those two questions Mr White then asked the accused the questions, to which I have referred, about the dark Ford sedan. He had ceased to ask her those questions when he informed her that the matter was investigated as a murder. Thus, although the response given by the accused - "Is that because he was drugged"? - may have occurred in the course of questioning of the accused by White, that questioning was more in the form of an informal conversation, which had been instigated by the accused.

42 In response, Mr Thomson has submitted that the circumstances, adverted to by Mr Champion, are not exceptional. In particular Mr White made a note of the conversation which he had with the accused, and notified Detective Sergeant Gibson of the conversation as quickly as possible. He did so because he saw it as a vital piece of information. It was the expectation of Mr White that that conversation would be put to the accused in the course of a subsequent record of interview with her. Nevertheless, when the accused was interviewed in a formal record of interview, the informant did not put to her the contents of the conversation between Mr White and herself on 10 December 2004.

43 There is little authority on the construction or application of s 464H(2). In R v Dupas[15], the police had conducted an interview with the accused in a police case shortly after his arrest. The police had endeavoured to record the answers of the accused on a tape recorder which had malfunctioned. When the accused was later re-interviewed, his exercised his right to remain silent. The trial judge held that the failure to comply with s 464H(1) was accidental and unintended, the evidence was of probative value, and there was no unfair prejudice to the accused in its admission. On appeal, Winneke P (with whom Phillips and Batt JJA agreed) upheld the trial judge's ruling that there were exceptional circumstances in the case, arising out of the fact that the machine had malfunctioned unbeknown to the police.

44 By contrast, in R v Nicoletti & Tolone[16], the Court of Appeal held that there were no exceptional circumstances, where a prosecutor had, without leave from the Court, sought to adduce evidence of an unrecorded admission by an accused, in the course of re-examination. The re-examination had been enlivened by cross-examination by counsel for the accused as to certain aspects of the conversation in which the admission had been made. However, Maxwell P (with whom Neave JA and Bongiorno AJA agreed) held that that did not constitute an "exceptional" circumstance, particularly in light of the fact that the prosecutor had not known what answer would be received from the informant from the question put to him in re-examination.

45 Plainly, the phrase "exceptional circumstances" denotes circumstances which are particularly unusual or out of the ordinary. Indeed, the tenor of the two decisions of the Court of Appeal, to which I have just referred, is to that effect. In particular, the circumstances must be such as to justify a departure from the regime constituted by s 464H(1), without compromising the manifest purpose of that provision and without involving any unfairness to the accused.

46 In the present case, there is force in the submission by Mr Champion that the circumstances in which the accused made the alleged admission to Mr White were quite unusual. However, the fact remains that, when the accused was subjected to a formal record of interview on 11 August 2005, the informant did not seek to have the accused confirm the making of that admission. That interview was conducted over a period of some six hours. In it the accused responded to all the questions put to her. If, in the course of that interview, she had been questioned about the alleged admission which she made to White, she would have had the opportunity to make a response, and that response would have been admissible in evidence at her trial. The failure to put the alleged admission to the accused in her record of interview thus deprived the accused of the opportunity to respond to it, and to have that response admitted in evidence. For those reasons I do not consider that the circumstances of this case are exceptional. Further, I do not consider that the circumstances are such as would justify the admission of the evidence, because, in my view, it would be unfair to do so for the reasons which I have just enunciated. Accordingly I do not consider that it would be appropriate to exercise the discretion, under s 464H(2), to admit in evidence the alleged admission made by the accused to White on 10 December 2004.

47 For the reasons which I have set out above, I therefore conclude that the following evidence is inadmissible:

(1) The evidence of Alexander McCormack as to the reason which Mr Marcetta gave him for revoking his previous will on 15 July 2003.

(2) The evidence of Ioanna Marcetta as to conversations between herself and the accused relating to Mr Marcetta.

(3) The evidence of Ioanna Marcetta and Athanasia Marcetta as to the nature of the relationship between Mr Marcetta and Athanasia Marcetta.

(5) The evidence of Detective Senior Constable White that in the course of a conversation with the accused on 10 December 2004 the accused asked him "Is that because he (Marcetta) was drugged"?

[2] [1989] HCA 9; (1989) 166 CLR 283.

[3] (1985) 37 SASR 581, 585.

[4] [1979] HCA 2; (1979) 143 CLR 134.

[5] Walton v R [1989] HCA 9; (1989) 166 CLR 283, 302.

[6] [1979] HCA 2; (1979) 143 CLR 134, 149 (Gibbs J); see also at 159 (Murphy J).

[7] [2005] 8 CA 2, [33].

[8] See R v Frawley (1993) 69 A Crim R 207, 222-3 (Gleeson CJ); R v Parsons [2000] VSCA 15; (2000) 1 VR 161, 167 [16-17] (Brooking JA).

[9] (1993) 69 A Crim R 371.

[11] Compare Walton v R [1989] HCA 9; (1989) 166 CLR 283.

[12] Heatherington v R (1994) 179 370, 374 (Mason CJ, Deane and McHugh JJ).

[13] R v Hazim (1993) 69 A Crim R 371, 379 - 380.

[15] R v Dupas [2001] VSCA 109.

[16] [2006] VSCA 175.