R v Gojanovic [2002] VSC 118

From these cases the following propositions relating to admissibility emerge:

(1) The evidence of the prior relationship, (being a relationship of enmity or antipathy), of the accused and the deceased must be reasonably explanatory of the conduct with which the accused is charged; (2) Such evidence may be adduced to establish motive, or intent, or the fact of the commission of the offence charged; (3) It is not necessary that any particular incident the subject of evidence pertaining to the relationship should singly and of its own force establish a relationship of enmity. It is sufficient if the incident related makes a contribution which is not insignificant or insubstantial to the climate of enmity or antipathy; (4) An incident in a relationship which is isolated or remote in time from the death may be insufficient to have any bearing on the issues of motive or intent or the fact of the commission of the crime charged; (5) Evidence of a prior relationship of enmity or antipathy is not to be led as evidence of bad character or of a propensity towards violence of an accused."

14. Since that statement, the issue of relationship evidence has received attention in such Victorian cases as R v. Anderson [2000] VSCA 16; (2000) 1 V.R. 1, per Winneke, P. P.12 ff. and R v. Parsons [2000] VSCA 15; (2000) 1 V.R. 161 per Brooking, J. at p.167 ff. Both cases refer to the judgment of Gleeson, C.J. in the New South Wales Court of Appeal case of R v. Frawley (1993) 69 A.Crim.R. 209. In this case Gleeson, C.J. stated, (at p.220):

"One of the difficulties affecting consideration of relationship evidence is that the concept of relationship is vague. In a particular case ...., it may be necessary to identify with more precision what is in question. Frequent and serious quarrelling between a couple of a kind that goes beyond what Menzies, J. referred to in Wilson as ordinary difficulties and disagreements, may be relevant to whether one intended to kill the other, or to some other issue in a criminal trial. That is one kind of relationship evidence. What, however, of evidence of the state of mind of one party to a relationship? If one party to a relationship is accused of murdering the other, admissible evidence of the accused's state of mind may well be relevant. It is less likely that evidence of the victim's state of mind will be relevant, although, as the authorities cited above show, it may be relevant, depending on the issues in the case. Again, evidence that one party says things derogratory of the other party, in the other party's absence, is a form of relationship evidence. Whether or not it is admissible may depend upon the circumstances, and it is not particularly helpful to begin with an assumption that, in the case of homicide involving a man and a woman, evidence of their relationship is admissible."

"In my view the preferable approach in a case such as the present is not to consider the matter in terms of generality as to 'relationship' but, rather, to consider whether the evidence in question is direct evidence of any fact relevant to a fact in issue."

20. As I apprehend the current defence position in this trial, the issue of intent will certainly be raised as well as provocation, if it proves to be available. The question of the accused's presence at the house or his involvement in the killing is no longer an issue. Accordingly, the question of the admissibility of the relationship evidence must be approached in the context of these defences. (I use the term "defences" broadly.) I turn to that evidence.

23. First, the Crown wish to lead evidence of an incident occurring most probably in late July 2000, that is, about seven and a half months before Ms Farnsworth's death. (Other witnesses put the event, or at least information about it, in August, September or October 2000, but it is clearly the one incident.) This is put as being relevant to a full understanding of the relationship of the parties.

26. Secondly, the Crown wish to adduce evidence of the expressed fear by the deceased of the accused. The evidence sought to be led is as follows:

1. Evidence from the witness Monica Ivelja to the effect that the accused told her in October 2000 of a fight between himself and the deceased. No details were provided but the witness understood that Angela had attacked him and he had defended himself. 2. The evidence of Robert Mitchell that, at a date placed as late August or early September 2000, he received a phone call from the deceased who described an altercation with the accused in which, inter alia, she was bashed and had a hammer put to her head. The witness later attended at the deceased's Chelmsford Avenue premises. There he observed the deceased in a distraught state and shaking. He was shown bruising to various parts of her body. The deceased recounted what the accused had done and requested the witness to remain at the house. It was apparent to this witness she feared the return of the accused. 3. The evidence of Kerry Kovacevic that in August or early September 2000 the accused told her that he had lost it and tried to strangle Angela. The witness also deposes to the deceased telling her the accused tried to strangle her. She spoke, inter alia, of the accused holding a hammer to her head. Ms Kovacevic also noted bruising to the deceased's neck. This was at a time proximate to this incident. The deceased was shaking and upset during her recounting of the incident. 4. The evidence of Mark Farnsworth that the accused told him on the 25th of July 2000 that he had hit Angela. 5. The witness Jillian Johnstone, whose depositional statement refers to an incident which she places as just before Christmas 1999 where the accused spoke of threatening to hit the deceased with a hammer. The accused said, inter alia, that Angela ended up with a bruise. 6. The witness Sharyn Mitchell, whose statement records the deceased describing an incident at Chelmsford Avenue when, inter alia, the accused had held her by the throat and threatened to bash her head in with a hammer. The witness also observed injuries. 7. The witness Marijana Percic stated the deceased had told her that she was scared of the accused who had bashed her once in the past. This conversation seems to have occurred on 11th March 2001. 8. The witness Marcelle Sharp describes the deceased saying to her, "Look what Denis has done" and showing her bruising over her body and neck area. The deceased also said that the accused was trying to strangle her and, further, that she was scared he was going to kill her. 9. The witness William Butler spoke of a time, probably about September/October of 2000, when the deceased had informed him that the accused had beaten her and pushed her into a wall and cupboard. The witness was also shown bruising to the deceased's back and arms. This was also said in the context of the deceased having kicked the accused out of the couple's home, (although apparently this was not the only time the accused was ejected). 10. The witness Craig Hay deposed to the deceased asserting that she was scared of 'her ex' and worried about getting her boy back. This conversation occurred on 11th March 2001. On that evening the deceased requested that the witness walk her to her car as she was scared. 11. The witness Susan Gladwell states that the deceased told her of an assault by the accused about eight months earlier, (that is, about July 2000), when he, after being told to leave the premises, had tried to strangle her, pushed her into the door and left bad cuts and bruises. The witness observed bruises to the deceased's upper body, face, neck and leg. On a date proximate to the killing, which the witness placed as possibly Tuesday 6th March, the deceased described sitting outside her premises armed with a hammer while the accused retrieved the balance of his belongings and their son Nicholas. Recounting this event the witness said she feared Denis. Subsequent to the earlier assault the deceased had expressed her fear of the accused's strength. 12. The witness Paul Ivelja talks of the accused recounting an incident where he had lost it and struck the deceased. 13. The witness Cheryl Potts referred in her statement to hearing the deceased screaming on an afternoon in August/September 2000. The following afternoon the deceased told her she had asked the accused to leave and, as a result, he had attacked her. She described the accused having her in a headlock, having a hammer in his hand, and threatening to hit her with it. The witness noticed a large bruise on the deceased's left shoulder and milder bruising to the upper back and sides of the neck. At the deceased's request the witness took two photographs. These photographs are apparently available to be tendered in evidence. 14. The witness Denis Tomlins deposed to speaking with the deceased about midway through 2000. At that time she was looking for accommodation in Pavo Street, having ended her relationship with the accused. On that occasion the deceased gave as one reason for such termination that the accused had beaten her, that he had tried to strangle her. The witness observed bruises to the deceased's neck, lower left-hand side back and left shoulder. 15. The witness Mavis Nicholson stated that some time in 2000, the deceased told her that the accused had pushed her in the kitchen. The witness observed a bruise on the deceased's upper arm. 16. The witness Mardi Keogh said that the deceased told her on the 20th of July 2000 that the accused had beaten her and had tried to strangle her. There was bruising to the left side of the deceased's neck in the shape of a person's fingers. The witness was also shown bruising to the deceased's shoulders and back. Apparently, expanding on this account, the deceased said that the accused had held her up against a wall and tried to hit her in the head with a hammer. He had also threatened to kill her. On this occasion, the 28th of July, the deceased looked very upset. 17. The witness Henry Viuk stated that at a date about six months earlier, that is, about September/October 2000, the deceased asked him to walk her to her car. She stated she was afraid of the accused. She said the accused had hit her and held a hammer to her head. The witness was shown bruises to the deceased's back and ribs. 18. The witness Laurence Taylor was told by the deceased on the 8th of March 2001 that on the 7th of March she had telephoned her de facto to the say she wanted nothing more to do with him and wanted him out of the house. She stated that her de facto had been violent in the past and had recently punched her in the face causing a black eye. However, the witness saw no physical marks on the deceased's face consistent with a recent assault. 19. The witness Brian Denmead, the deceased's father, deposed to a time, apparently prior to the end of August 2000, when he noticed distinct bruising around the deceased's neck. The deceased indicated that the accused had tried to strangle her and had also threatened to kill her with a hammer he was holding. There was also bruising to the knees and thighs where, according to the deceased, the accused had punched and kneed her. The witness also stated that on the 10th of March 2001 the deceased had said she was frightened of the accused. 20. The witness Cheryl Marshman gave evidence of being informed by the deceased on the 10th of March 2001 that she was having serious domestic problems with her ex-boyfriend who was hassling her.

30. As I indicated, I take the evidence of the assault in the latter half of 2000 as deposed to in various forms by the proposed Crown witnesses to refer to the one incident. The witness Laurence Taylor does not fall into that category, and in all the circumstances I would not regard his evidence as to any assault as relevant or admissible.

33. The evidence of this assault is sought to be led by way of relationship evidence which, it is submitted, is relevant to the issues of intent and provocation.

36. In opposing its admission Mr Lewis, on behalf of the accused, submitted it was too remote in time from the date of the killing and hence was irrelevant. Further, it was contended that this was an isolated event in a fluid relationship which clearly continued after that date. Additionally, it was argued that its prejudicial effect outweighed its probative value.

39. In my view however the incident may be seen as providing cogent evidence of a relationship which had the capacity to generate a high level of antagonism between the parties; antagonism which manifested itself in an equally high level of violence. Further, the incident may be regarded as sufficiently proximate to the date of death of Ms Farnsworth. There is direct evidence of this event in the form of admissions by the accused in various forms to the witnesses Monica Ivelja, Paul Ivelja, Kerry Kovacevic, Mark Farnsworth and Jillian Johnstone.

42. Whilst there is undoubtedly a prejudicial aspect to such evidence, this does not outweigh its probative value and that aspect of it may be addressed by appropriate jury directions.

45. Further, there is a plethora of material in which the deceased describes this incident. Such evidence varies from witness to witness, not necessarily because Ms Farnsworth's account varied, but probably because of differing levels of recall by those she told of it. Overall it is a more detailed account than is provided by the admissions of the accused and it may well be an accurate and truthful account of events. However, the evidence of the incident as recounted by the deceased is strictly hearsay.

48. Nonetheless, in instances such as the present, where there is some corroboration for the deceased's account in the accused's own admissions, an argument may be made for a more flexible approach to the hearsay rule.

51. Additionally, there is, in the present case, abundant evidence of physical injury to the deceased. Direct evidence of the deceased's physical appearance is admissible in its own right providing an inferential link can be made to the assault to which the accused has admitted. There is temporal evidence from which that inference may be drawn. However, what greatly assists in making sense of the injuries observed is the deceased's allegation of an assault by the accused. Since such an assault is admitted by the accused, the allegation of assault by the deceased has a high level of reliability. Moreover, the truth of such allegation is not dependent upon the assertion itself, rather, its reliability is attributable to the accused's own admissions.

54. In the circumstances outlined it would be an exercise in legal artificiality to prevent evidence being placed before the jury of the deceased's assertion of an assault.

57. However, because of the understandable variations in the deceased's account I would limit any reference to an allegation of strangling and the threat with the hammer; in other words, to those aspects of the deceased's statement which parallel the extent of the accused's admissions.

60. No doubt the defence could endeavour to categorise the incident as isolated and out of character, but that is a matter for forensic decision.

63. Witnesses capable of giving evidence of injuries in varying degrees of comprehensiveness are Robert Mitchell, Kerry Kovacevic, Sharyn Mitchell, Marcelle Sharp, William Butler, Susan Gladwell, Cheryl Potts, Denis Tomlins, Mavis Nicholson, Mardi Keogh, Henry Viuk and Brian Denmead. It may well be unnecessary to call all or indeed many of these witnesses on this topic, but that is up to the Crown to determine.

66. Submissions were also made regarding the admissibility of statements made by Ms Farnsworth from time to time, expressing her fear of the accused. Given the defences which the accused seeks to place before the jury following the ruling on the admissibility of the record of interview, such fear, if relevant, must relate either to the possible issue of provocation or to the accused's intent.

69. The fearful state of mind of the deceased of her partner is a species of relationship evidence. It is not hearsay and, as I have stated, if it has relevance to a fact in issue it is clearly admissible.

72. In submitting that the evidence had relevance to provocation Mr Leckie, on behalf of the Crown, called in aid the authority of R v. Parsons (ibid). In that case the accused asserted that prior to his fatal attack upon his wife, which occurred during an adjournment of a contested Family Court hearing, she had smiled and laughed at him and said: "We have got you now, you bastard" and that she could now do what she liked with the children. In these circumstances evidence of the deceased wife's state of mind, being one of fear of the accused, was probatively significant since it bore on the probability of her having smiled and laughed and verbally taunted the accused immediately prior to her death.

75. In the instant case the accused alleges that he and the deceased wrestled, and that the deceased used words, largely unspecified, which were a cause of his losing self control.

78. In the record of interview, for example, at Q.1217 and 1218 he was asked:

Q: Okay. Well, what happened this morning when you went around to confront her?

A: She had an absolute fit. Absolute fit. Absolute fit.

Q: So you've got - you, yourself, have got about five years of, I suppose, pressure building up?

A: Unbelievable. To the point where I had to, you know, squeeze this other person away, you know, because I didn't want it to come out. You know what I mean?

Q: Which is you. So what you're saying is you've been trying to control your feelings for a long time?

Q: Okay. Well, then last night you obviously didn't control them?

A: There was a bit of a wrestle in between the two doorways. She was saying this and that and I can't - I can't remember. Like, that's - that's the - that's the thing, you know.

Q: Okay. Well, what happened? Just go over to the best that you remember. She's saying things to you?

A: I don't know what she was saying. Somethin' about Nicholas.

Perhaps more significantly are questions 1334 to 1336:

Q: Did you say or do anything to her last night which would provoke her to sort of start the wrestle or did she say anything to you which would provoke you to actually act in the way in which you did?

A: She treats me with words that - that I wouldn't even say to a dog.

Q: Did she say anything to you which would cause you to behave in the manner in which you did?

A: Well, again, I - I don't know. She - she just - sometimes it's just that you don't know what's gonna come out of her mouth and it's - it's just terrible, but her actions are the worst side about it. You know, 'cos words - - -

A: It's what she does. It's - it's - you know, it's - it's the things she does ....

108. The asserted fear of the accused by the deceased, in my view, has relevance as to the likelihood of Ms Farnsworth initiating any wrestle with the accused and the likelihood of her using the type of words calculated to provoke the accused which he seeks, albeit principally in generalities, to attribute to her.

111. The only factor which distinguishes the instant case from that of R v Parsons is the specificity of the provocative words and conduct alleged in the latter. That difference is, in my view, insufficient to sustain the proposition that the evidence of the deceased's fear may be regarded as irrelevant.

114. But the relevance of such evidence is not limited to cases where legal provocation is the issue. As is apparent from the judgment of Brooking, J. in Parsons' case, where a killing is allegedly provoked in the sense that, because of the stress of the moment caused by the deceased's words and/or actions, the subsequent actions of the accused which caused death were not accompanied by any specific murderous intent, then the deceased's fear of the accused is relevant. Its relevance again lies in the probability of the deceased indulging in the type of provocative conduct, (be it actions or words) asserted by the accused.

117. Accordingly, I rule the evidence of the deceased's professed fear of the accused is also admissible.