Submissions on admissibility.
44 Mr Ierace SC, on behalf of the accused, objects to all of the proposed relationship evidence, and alternatively to evidence concerning the abduction on 23 January 2001. In support of the general objection, counsel drew attention to the statement of principle of Howie J in R v Toki (2000) 116 A Crim R 536 where his Honour said this: (at 540)
"The evidence is admitted not simply because it describes the relationship of the parties, but because statements or acts of the parties occurring within the relationship are relevant to the issues before the jury."
45 Evidence of the relationship must be relevant to the facts in issue. According to the accused, the Crown had not identified any specific question which the relationship evidence might reasonably and logically elucidate. Yet it was highly prejudicial. The jury may regard it as demonstrating a propensity on the part of the accused to resort to violence.
46 Alternatively, in the context of significant evidence concerning the relationship between Ms Haklane and the accused, as proposed by the Crown, the incident on 23 January should be excluded under s137 of the Evidence Act. It was, according to the appellant, unfairly prejudicial for a number of reasons.
47 First, the incident involved the same car as the car in which the body of the deceased was found five months later. The jury would find it difficult to put that aspect to one side. Yet, there would be no evidence that the deceased met her death in the car. The evidence to be presented by the Crown would be consistent with her having been murdered elsewhere and then placed in the car. There would be no direct evidence as to who was responsible for her murder, or even that it was the work of one perpetrator.
48 Secondly, one could not ignore what happened after Ms Haklane's initial complaint. She had then altered her statement within three days. She withdrew the allegations against Mr Hamoui. Instead, she made allegations of impropriety against the police in the taking of the statement. She cannot now be cross examined. It would be impossible for the jury to satisfactorily resolve these issues. If the issue were opened up, a number of witnesses would need to be called. Inevitably it would give rise to a "trial within a trial". It would be a distraction from the real issues.
49 The Crown responded that under the ordinary rules the evidence was admissible. It was highly probative. It could not be regarded as unfairly prejudicial. The Crown drew attention to R v Clark (2001) 123 A Crim R 506 where Heydon JA, after an extensive review of the authorities, identified the differing ways in which relationship evidence may be relevant. First, such evidence provided a realistic context within which the Crown case against the accused could be considered. Heydon JA said this: (at 575)
"... to exclude all evidence of tension and violence but leave in only evidence of cordiality would be misleading. The evidence was relevant because it prevented the issues from being considered in a 'vacuum' ( Wilson (1970) 123 CLR 334 at 344, per Menzies J). It avoided the jury having 'quite an artificial picture': Peake (1996) 67 SASR 297 at 300, per Millhouse J (Williams J concurring). It enabled presentation of the case 'in an intelligible and real fashion': Garner (1963) 81 WN (Pt 1) (NSW) 120 at 123, per Sugerman J. The evidence was 'the key to an assessment of the relationship between the [accused] and the [victim] and, as such, constituted part of the essential background against which the ... [accused's] evidence ... necessarily fell to be evaluated': B at 60."
50 Secondly, relationship evidence is ordinarily relevant to a determination of whether the accused had killed the deceased and done so with the appropriate intent. Heydon JA said this: (at 575)
"... It was material to consider whether the past dealing and mutual attitudes of the parties were such as to create a reasonable doubt in the appellant's favour or whether they were such as to increase the probability that a killing resulted.
The relationship was capable of casting light on whether the appellant killed the deceased, and, if he killed the deceased, what his mental state was: Hissey (1973) 6 SASR 280 at 289. The existence of a bad relationship increased the chance of a relaxation of normal inhibitions against killing. It thereby offered a potential explanation for any criminal conduct by the appellant. It established 'an atmosphere which would render it less unlikely that the offence charged would have been committed in the circumstances which arose on the occasion of [the accused's drive with the victim], having regard to the past relationship of the principals': Garner at 129 per Maguire J."
51 His Honour added: (at 575/6)
"Even though the relationship evidence was not tendered as going directly to motive, an evaluation of the motive issue and an evaluation of the probabilities in relation to whether the appellant killed the deceased, after a sudden quarrel or otherwise, would be carried out less realistically if there were an exclusion of all evidence of the bad terms existing between the appellant and the deceased. Evidence of a hostile relationship would enable the jury to draw adverse inferences from the circumstantial evidence pointing to the appellant's guilt; evidence of a good relationship, foreshadowed by the appellant in his records of interview and actually given in the witness box, would cause them to hesitate in doing so."
52 Thirdly, the evidence was also relevant because it could be predicted that the accused would rely upon evidence that his relationship with the deceased had been good (Garner (1963) 81 WN (Pt1) (NSW) 120, per Sugerman J at 123; Plomp v The Queen (1963) 110 CLR 234 at 251). His Honour added: (at 576)
"The evidence against the appellant was, apart from his confession to Mr Brown, entirely circumstantial: he made no direct admissions to the police and there was no direct witness of the crime . Where a case is entirely circumstantial, it is common for relationship to be considered as one of the circumstances ."
(emphasis added)
53 According to the Crown, each of the purposes identified by Heydon JA had application to this case. There was some material which, arguably, should be excluded under s137. That material had been discussed by counsel. Excisions had been made. What remained, according to the Crown, could not be regarded as unfairly prejudicial. It should be admitted.