R v Khazma

The relationship between the accused and the deceased

1. The accused was a member of the household in which DB resided with her mother at rented premises at Guildford at the time of her death. The accused identified himself to police on his arrest as the child's stepfather and the partner of the child's mother. As at the date of the child's death the relationship was of approximately two months duration. The rented premises at Guildford was described in the evidence as a "granny flat". The tenancy commenced approximately four weeks before the child's death with the accused becoming a member of the household two weeks into the tenancy.
2. Ms AS is also the mother of another child (TW) aged 4 years at the time of DB's death. He had been living with his mother and his sister in other rented premises and with Ms AS's maternal grandmother until he moved into his father's home in November 2016.
3. DB was last seen when Ms AS visited with the accused's mother, Ms Cuthbert. Ms Cuthbert is to be called as a witness in the Crown case. She observed bruising on the child's legs in the days prior to the child's death. On interrogating the child, DB is alleged to have said that both her mother (Ms AS) and the accused ("Mummy and Daddy") caused the bruises. Ms Cuthbert also saw bite marks on the child's legs which Ms AS said had been caused by her and the accused "during play" with the child.
4. A forensic examination of the granny flat after the death of the child revealed, inter alia, the blood of the deceased child on various items, including the clothing of the accused. Her blood was also revealed in swabs taken from the kitchen floor; an area just outside the front door; a wall in the lounge room above the lounge; from the child's cot, and from a vanity in the bathroom. DNA recovered from two cigarette lighters and a micro USB cable revealed a DNA mixture originating from at least three individuals with the deceased child and the accused unable to be excluded as contributors.

The Crown case

1. Ms AS is the principal witness in the Crown case. It is anticipated that she will give evidence that the accused inflicted all of the injuries revealed on post-mortem, inclusive of the head injuries causative of death consistent with the account she gave in a lengthy record of interview on 19 December 2016 and a statement she gave to police dated 20 December 2016 served as part of the prosecution brief of evidence.
2. On her arraignment in this Court on 15 June 2018, Ms AS pleaded guilty to the manslaughter of DB on the basis of her failure to intervene to both protect the child from the accused's assaultive behaviour or to seek medical intervention at a time when she was aware of the gravity of the child's injuries, including, in particular, the head injuries which, on the Crown case, were inflicted over a period of 24 hours prior to the child lapsing into unconsciousness at about 3pm on 19 December 2016. Ms AS was sentenced on 20 June 2018. She was released to parole that day (R v AS [2018] NSWSC 930).
3. It is the accused's case, as foreshadowed by Mr Terracini SC at the pre-trial hearing, that Ms AS inflicted the head injuries causative of her daughter's death and the range of non-fatal injuries identified at post-mortem the subject of Counts 2 and 3 on the indictment. It is the accused's case that Ms AS has falsely accused him of murder and of inflicting injuries on the child, including the burn injuries to her perianal region, and that she has given a fabricated account to police in order to conceal her guilt.
4. On 3 October 2018 the accused served an amended tendency notice under s 97 of the Evidence Act 1995 (NSW) notifying his intention to adduce evidence of Ms AS's physical abuse of the deceased child and her brother as observed by a number of people who the accused intends to call as witnesses in his trial. He also seeks a ruling that certain evidence to be adduced in the Crown case from the accused's mother should be the subject of a direction that it might be considered by the jury as capable of evidencing a tendency in Ms AS to inflict intentional harm on her daughter.
5. A voir dire was convened to consider the admissibility of the tendency evidence prior to the trial commencing. The following witness statements were tendered. A summary of the evidence the accused intends to adduce from them may be summarised as follows.

Meagan Ross - Statement dated 25 January 2017

1. Ms Ross says she has known Ms AS since she was 14 (she is currently 21 years of age). Ms AS lived with Ms Ross' family when they were teenagers. Within six months of Ms AS moving into Ms Ross' parents' home, she became pregnant with TW. She moved out three months later with her then boyfriend. When TW was three months old, Ms Ross and her mother provided some respite care for Ms AS while she sought to regularise her living arrangements. Ms Ross lost contact with Ms AS in March 2013, resuming contact in November 2014 when Ms Ross visited her at an address in Campsie by which time the deceased child had been born and was aged nine months.
2. By November 2014 Ms Ross was living with her parents-in-law in Punchbowl where Ms AS met Ms Ross' brother-in-law with whom Ms AS formed a relationship and to whom she was married under Islamic law a week later. Ms AS moved into her husband's parents' home with the two children. Ms Ross gives the following account at paragraph 14 of her statement: When [Ms AS], [TW] and [DB] moved in with us I got to see how [Ms AS] treated [TW] and [DB]. [Ms AS] used to hit [TW] a lot and she used to hit him with open palms. She would slap him all over his body, nowhere was off limits for her to slap him. [Ms AS] would hit [TW] for really stupid things, like leaving his toys out, or for peeing or pooing in his nappy, or drooling on his clothes. She would also hit him just for annoying her. He used to be very talkative and she'd hit him just for talking. She'd make him stand in the corner of a room facing the wall, and if he even moved a little bit she'd hit him. I remember there were times when I'd go up to him when he was standing in the corner and try to get him to come with me but he was terrified of getting hit by Ms AS if he moved. (Emphasis added.)
3. In paragraphs 15-17 of Ms Ross' statement, she describes an incident whilst Ms AS was living with her parents-in-law when TW (then aged 2) had managed to get out of the house on his bike and was on the road in the path of an oncoming car. Ms AS grabbed TW, pulling him off his bike as the car ran over it. TW was taken to a bedroom where Ms Ross describes him "screaming like he was in a lot of pain". Ms AS was heard yelling at him using course language. She then left TW in the room with his head in the corner facing the wall. Ms Ross entered the room and describes seeing "bruises all over [TW's legs] … they were big and round … they looked to me like they'd been caused by punches". She also observed a bruise on his lower back. She goes on to describe him being in "a state of unconsciousness" even though he was standing.
4. In March 2015 Ms AS's Islamic marriage with Ms Ross' brother-in-law terminated and she moved to what is described as a "small granny flat" in Bass Hill. Ms Ross moved into the same premises a month later (on 21 or 22 April 2015) after she had separated from her husband. Ms Ross describes having one of the two bedrooms with Ms AS and the two children sharing the second bedroom.
5. In paragraphs 24 to 34 of her statement, Ms Ross describes the shared domestic arrangements in the home as lacking cleanliness with inadequate care being provided by Ms AS to her children, neither of whom were toilet trained. She also describes Rochelle Bautista, a friend of hers, moving in to the Bass Hill flat and sharing her room (see Ms Bautista's statement following).
6. Ms Ross describes escalating tensions between the three women wholly attributable to Ms AS's treatment of the children and, in particular, her physical mistreatment of TW. At paragraph 34 she says: I started having a go at [Ms AS] for how little she was doing with cleaning the unit and taking care of the kids. I could tell that [Ms AS] was getting frustrated and she'd take it out on [TW]. She would slap [TW] in the face and hitting him on the back of the head, screaming at him, calling him names and pushing him out of the way. She would go off at him over nothing and it was just like when we were living at Punchbowl with the way that she'd treat him and abuse him.
7. Towards the end of May 2015, Ms Ross moved out of the Bass Hill premises. She describes an incident a week before she moved out where, after Ms Bautista was chastising Ms AS for not changing TW's nappy or feeding him or giving him a bath, Ms AS grabbed the child and took him from the bedroom shared by Ms Ross and Ms Bautista into her bedroom. Ms Ross goes on to describe this incident as follows: 36. … [Ms AS] ended up getting out of bed and she grabbed [TW] by his arm and took him into her bedroom. I saw the motion of [Ms AS's] body and it looked like she's thrown [TW] into her bedroom. By this time we were all in the lounge room, but when [Ms AS] went with [TW] to her bedroom I didn't have a clear view inside her bedroom. I saw the motion of [Ms AS's] right arm and it was like she threw [TW] into the bedroom. I couldn't see [TW] but when he went inside the bedroom I heard a loud smacking sound and I knew it was from [TW] hitting something inside the room. Immediately after the smacking sound I heard [TW] screaming out in pain. [Ms AS] followed him into the bedroom and shut the door behind her, locking it. 37. I heard [Ms AS] yelling at [TW], saying things like "I hope you get hit by a car, you're the biggest mistake of my life, I wish I never had you". I remember banging on the door and telling [Ms AS] to let me in. [Ms AS] opened the door and [TW] came straight to me and he had a massive egg on his left eye. [TW] was crying so much and so hard that he was hyperventilating and he was saying to me "Aunty mummy hurt me". I remember Rochelle went off at [Ms AS] over it, saying to her "[Ms AS] you're fucked" and things like that. Rochelle and [Ms AS] got into a big fight that morning. [Ms AS] ended up slamming her bedroom door in Rochelle's face and Rochelle and I were left with [TW] in the living room while [Ms AS] was shut up in her room. 38. I called my mum as she's a qualified nurse because of [TW's] eye and I didn't know what to do. I took [TW] into the bathroom. I changed [TW's] nappy and washed him in the laundry sink. I tried to find clean clothes for him but there weren't any in the house. I think I ended up putting him in a pair of [my child's] tights. 39. After a little while [Ms AS] came out of her room and asked if [TW] was ok. I think she'd heard me on the phone to my mum because she also said to me "Please don't tell your mum I threw him into the bed" and I told her that I'd tell my mum that he'd fallen over, but his eye still needed to be looked at. Before mum got to [Ms AS's] place I took a photo of [TW's] eye and sent it to her …
8. In a subsequent statement dated 24 September 2018 Ms Ross produced a photograph of the child's injury. A bruise and swelling to the child's eye (between the eyelid and the eyebrow) is clearly evident. Ms Ross said she moved out the following day.
9. Some weeks later Ms Ross describes visiting Ms Bautista and going back to the Ross Hill premises to spend the night with her. The following day was Mother's Day. Ms Ross gave evidence of wishing Ms AS a happy Mother's Day before leaving the house to go to the shops with Ms Bautista. She says that when they got back from the shops they went inside the house and she observed that Ms AS's bedroom door was open. She goes on to say as follows: 46. Rochelle and I got back from the shops and went back to Rochelle's place. We went inside and [Ms AS's] bedroom door was open. I didn't see anything, all I remember is walking in and hearing a really loud crack noise, and I ran up to [Ms AS's] room to see what it was, and I saw [Ms AS] was holding [DB] upside down by her leg (I can't remember which leg [DB] was being held up by). [DB's] eyes were rolling back into her head and I went up to [Ms AS] and grabbed [DB] straight away. [Ms AS] was hysterical and screaming "[DB] [DB] wake up!" and [Ms AS] was getting right up in my face. Rochelle sort of took [Ms AS] away from me and [Ms AS] ended up falling to the ground and she started banging on the ground. I got Rochelle to call the ambulance while I was sitting on the lounge with [DB] and I didn't know what to do. [DB] wasn't crying or anything but her head was shaking and I remember thinking she might be dying. I got Rochelle to grab me a cup of water and I started flicking water in her face to see if that would help but it didn't. I ended up tipping some of the water in [DB's] face and she kind of snapped out of it and took a deep breath, then she started crying. [DB] was crying but then she'd stop and sort of doze off for a bit, then she'd start crying again. I remember thinking that [DB] was dying at that stage. [Ms AS] was at the front door screaming and Rochelle was on the phone. [Ms AS] was yelling "You can't let her die, don't let her go". 47. Eventually [DB] became less dazed and was staying awake for longer periods of time, so I gave her a bottle to see if that would help. While I was giving her the bottle, the ambulance turned up. 48. I can't remember if the ambulance officers came into the house or if we met them outside, but I remember [DB] was a lot better than she had been by the time the ambulance arrived. I spoke to the ambulance officers but was in shock and I can't remember what I said to them. The ambulance took [DB] and [Ms AS] to the hospital, but I don't know what hospital. While [Ms AS] was at the hospital with [DB], Rochelle and I stayed at home with [TW].
10. Ms Ross did not return to the Bass Hill premises again and severed contact with Ms AS whilst maintaining sporadic contact with Ms Bautista. She also says that she made calls to the Department of Community Services reporting Ms AS's mistreatment of her children.
11. Ms AS moved back in with Ms Ross in October 2015 after Ms AS had been evicted from the Bass Hill premises. Ms Ross does not describe any beatings or abuse of either of the children at that time. Contact was lost again for about a year when Ms Ross learnt through social media that Ms AS had moved out of her grandmother's home. Ms AS asked Ms Ross whether she would take her to a house inspection. Ms Ross says that she picked Ms AS up from Bankstown Train Station after which Ms AS "stayed with [Leahna Kypreos] for a bit". Ms AS did not attend the house inspection.
12. In her final contact with Ms AS prior to the institution of these proceedings, Ms Ross says that she and Leahna Kypreos picked Ms AS up from Campsie and took her to her grandmother's home in Leichhardt.

Rochelle Bautista - Statement dated 24 September 2018

1. Ms Bautista first met Ms AS through Ms Ross when she was 14. Ms Bautista moved into the Bass Hill premises with them when she was 16.
2. Ms Bautista also detailed the incident where the deceased child was attended to by an ambulance on Mother's Day in 2015. She describes returning to the flat and seeing: … [Ms AS] holding [DB] and [DB] appeared to be unconscious. [DB's] head was drooped to one side and it was a distressing image to see. [Ms AS] freaked out and began violently shaking [DB]. I knew it was bad and called an ambulance straight away as I was concerned for [DB]. [DB] started to wake before the ambulance arrived. She was taken to hospital in the ambulance for further examination. [Ms AS] told us that [TW] had pushed [DB] off the bed. It was suspicious as I found it hard to see how [DB] would be unconscious from falling off the bed.
3. She also recalled what she describes as "an occasion" when she saw TW with a bruised eye and, upon asking Ms AS what happened to him, Mr AS said that she had pushed him so badly that he tripped, fell and hit his head on the corner of the bed. Ms Bautista goes on to say at paragraph 8 of her statement: It was not uncommon for [Ms AS] to hit or slap [TW's] head. On several occasions I witnessed [Ms AS] strike [TW] to the head. She would follow through with her hand and arm in such a way that significant force was used. One time, I saw her pick [TW] up by one hand and drag him across the floor before slapping him to the side of the head and then pushing him into a room and slamming the door. She would then leave him in there for an hour or sometimes longer. This would usually occur when [MS AS] was angry with [TW] for crying or for not doing what he was told.

Leahna Kypreos - Statement dated 23 September 2018

1. Ms Kyprios met Ms AS when she was 14 and was visiting the Bass Hill premises. In paragraphs 6 to 15 she records her observations of what might be fairly described as generalised neglect of the children, including irregular changes of their nappies and Ms AS's poor parenting skills.
2. In paragraphs 15 and 16 she says as follows: 15. I was concerned that [Ms AS] didn't care about her children or what happened to them. She would blame everything on the child and she would never take responsibility. 16. [Ms AS] got frustrated easily with the children and I would hear banging and screaming often.
3. She refers to ending her relationship with Ms AS as a result of arguments about the treatment of her children. She said she visited Ms AS once while she was living at her grandmother's place in Leichhardt, three months before DB's death. She commented that she was happy to see that Ms AS had "made an attempt at reaching out for support by moving in with her nonna".

Anne-Marie Grant - Statement dated 3 October 2018

1. Ms Grant describes witnessing two distinct incidents, both of which occurred on the same occasion when she was visiting Ms AS's home in Bass Hill. (Ms Grant describes this as having occurred in approximately 2014. It would appear from the evidence of Ms Ross and Ms Bautista that she must be wrong about the year, and that the incidents she describes occurred in 2015 as Ms AS was not living in Bass Hill in 2014.) Ms Grant describes seeing Ms AS on the phone when she arrived, as to which she says as follows: 4. [Ms AS] was on the phone when I arrived and [DB] was trying to get [Ms AS's] attention by pulling at [Ms AS's] clothes and crying. 5. [Ms AS] stood up on the couch and with both hands violently pushed [DB] so that she flew across the room. [DB] flew perhaps 3-4 metres. 6. I was horrified. I stood up and grabbed her by her throat and said "if you ever do that again I will knock you out or put you in a body bag".

Subpoenaed material

1. A large compendium of material subpoenaed from the Department of Community Services and related agencies was also tendered on the voir dire. At the point of tender it was submitted that identified parts of the material formed an independent source of the tendency of Ms AS to assault and neglect her children. On the final amended form of the tendency notice any tendency to neglect her children was abandoned as being irrelevant to any fact in issue in the proceedings. Mr Trevallion of counsel, who assumed conduct of the balance of the voir dire proceedings after Mr Terracini retired, confirmed that the subpoenaed material would only be relied upon in the trial as a secondary source of evidence to support the evidence of the witnesses from whom the tendency evidence is to be adduced, and only in the event that there is a proper basis to do so in re-examination.

Section 97 of the Evidence Act 1995

1. Section 97 of the Evidence Act 1995 (NSW) provides as follows: (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
2. The submission ultimately advanced by the accused was that the evidence it is proposed be adduced from the witnesses summarised above, when taken together and evaluated at its highest, demonstrates a tendency in Ms AS to physically assault her children out of frustration and to assault them when she is living in domestic circumstances unsupported by the presence of her grandmother. It is this conduct which the accused submitted raises, to a significant extent, the reasonable possibility that she was the person who both inflicted the fatal head injuries and the non-fatal injuries the subject of the secondary counts on the indictment, thereby satisfying the requirement in s 97(3) that the evidence has significant probative value. (It is assumed for the purposes of the tendency argument that the accused will give evidence that Ms AS assaulted the deceased child out of frustration in domestic circumstances in which he was cohabiting with her and the child but that he was not providing co-parental support of the kind provided by Ms AS's maternal grandmother with whom she was residing with DB before taking up the leased premises at Guildford.)
3. In the Crown's submission the discrete passages from the witness statements that were ultimately relied upon by the accused to establish the tendency contended for do not qualify for admission as tendency evidence. The Crown submitted that is the case irrespective of whether the incidents described by the witnesses and relied upon by the accused as constituting physical assaults by Ms AS on both the deceased child and her brother are assessed individually, in combination or in the context of other evidence to be adduced in the trial. In the Crown's submission this body of evidence, taken at its highest, does not satisfy the test for admission as tendency evidence under s 97(3) because it lacks the capacity to rationally affect, to a significant degree, proof of the identity of the murderer/assailant (by raising a reasonable doubt about the accused's guilt on the murder or assault charges) or, to put it another way, it does not support, to a significant degree, the reasonable possibility that Ms AS inflicted the fatal head injuries or that she inflicted the injuries the subject of either of the secondary counts on the indictment.
4. The Crown placed particular emphasis on the incidents described by the witnesses as being remote in time from DB's death in December 2016 (all of them having occurred within a six-month period between about March 2015 and August 2015), with none of the actual assaults or the sequelae of the assaults resulting in injuries of the order of gravity the subject of the post-mortem report.
5. In the event that some or all of the evidence the accused seeks to adduce is admitted for a tendency purpose (that is, if the accused does discharge the onus of establishing that the evidence is probative, to a significant extent, of a fact in issue in the trial being the identity of the person who inflicted the fatal and non-fatal injuries), the Crown submitted that in this case there is so great a risk that the evidence is contaminated, concocted or the subject of collusion that it would not be open to the jury, acting rationally, to accept the evidence, and that the evidence should be excluded for that additional reason (see The Queen v Bauer [2018] HCA 40 at [69]).
6. In the event that the evidence is inadmissible for tendency purposes, the Crown objects to any questions that might be put to Ms AS alleging the infliction of physical violence by her against either of her children as irrelevant to any fact in issue on any other basis and, that being the case, questions of that kind would be in breach of the credibility rule in s 102 of the Evidence Act and not encompassed by exception in s 103 of the Act.

Consideration

1. In Bauer the Court was concerned to clarify the circumstances in which a complainant's evidence of uncharged sexual and other acts is admissible as tendency evidence in proof of charged sexual offences. As the Court observed, the need for clarity was due in part to differences of opinion between members of the Court in HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, and IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 as the rationale that will apply to the admissibility of tendency evidence in single complaint sexual offence cases. In that category of case uncharged acts probative of the existence of a sexual interest in the complainant may be admissible as tendency evidence whether or not they have some special feature of the kind mentioned in IMM or whether they exhibit a particular special or unusual feature of the kind described in Hughes v The Queen (2017) HCA 20.
2. Is not necessary to dilate further upon the analysis the Court applied in coming to that conclusion, or the extent to which both IMM and Hughes might henceforth have limited application in sexual assault proceedings involving a single complainant.
3. The significance of Bauer to the issue under consideration here is whether there is any meaningful analogy between a case involving multiple complainants of sexual assault where the question is whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant (see [58] where the Court considered that the logic of probability reasoning dictates that there must ordinarily be some feature about the offending which links the two together), and the question whether Ms AS's assault of TW when he was 2 years of age (to the extent that that is a conclusion that is open from the evidence summarised above) is significantly probative of the question whether there is a reasonable doubt as to the identity of the accused as the person who inflicted the fatal injuries on the deceased child and the secondary injuries revealed on post-mortem. I note, in that connection, the judgment of the High Court in McPhillamy v The Queen [2018] HCA 52 which postdates the pre-trial argument in this case.
4. While it might fairly be said that there is no discrete feature of the uncharged acts of assault (either by the injuries inflicted or the circumstances in which they were inflicted) that would qualify as a linking feature per se, what the accused points to is Ms AS assaulting both children about the head and face with her hand or other object, and other assaultive behaviour such as to cause visible bruises on the arms and back of the male child and a mass of bruises on the chest of the deceased child, thus providing a "common feature of or about offending" that forges that link and in that way demonstrates a tendency on her part to act in a particular way, proof of which bears to a significant extent upon the reasonable possibility that she inflicted some or all of the injuries revealed on post-mortem, in particular the fatal head injuries. I regard that submission as well made.
5. In addition, I do not consider that the assaultive conduct directed to each of the children, and to which each of the witnesses depose with various degrees of particularity or generality is so remote in time or so innocuous as to deprive them of the capacity to provide significant probative force to the facts in issue in the trial in the way in which the accused articulated the tendency argument.
6. That said, as the parties were notified in the course of the hearing, I am not satisfied that all of the material relied upon by the accused satisfies the test of significant probative value for admission as tendency evidence. Those parts of the witness statements which satisfy that test are annexed in a schedule to these reasons. For emphasis, I have disallowed evidence relating to the hospital admission of the deceased child in May 2015 after she sustained injuries to the bridge of her nose and face, there being no evidence capable of establishing that was as a result of an assault as distinct from an accidental fall.
7. After indicating that ruling in the course of the hearing, I permitted the Crown to cross examine Ms Ross on the voir dire on his undertaking that he had evidence which in his judgment gave rise to the risk that her evidence was undermined by her previous relationship with Ms AS to such an extent that I would be satisfied that her evidence of witnessing TW being assaulted was contaminated and/or fabricated and that I would not permit the accused to adduce it for that reason. Cross-examination was conducted with appropriate restraint with the Crown limiting his cross examination to what I am satisfied were matters material to establishing an evidentiary basis for her evidence to be excluded despite its prima facie capacity to constitute tendency evidence. Ms Ross' evidence, in particular admissions she made to having sent threatening and abusive Facebook messages to Ms AS, some of which were highly suggestive of the involvement of others and all of which showed a high degree of animosity and deep seated malice towards her, did not in my assessment satisfy the high test identified by the High Court in Bauer for exclusion of the evidence in the following passages: 68. The submission should be rejected. In GM, the New South Wales Court of Criminal Appeal held that, despite the decision in IMM, the possibility of contamination, concoction or collusion is a relevant consideration in the determination of whether tendency evidence has significant probative value for the purposes of s 97, because the risk of contamination, concoction or collusion may give rise to a "competing inference" sufficient to render the evidence inherently implausible. More recently, in BM v The Queen the New South Wales Court of Criminal Appeal stated that until and unless this Court says otherwise, the possibility of contamination, concoction or collusion remains relevant to admissibility. What was said in GM and BM now requires qualification. 69. In this context, reference to competing inferences is unhelpful, and likely to lead to error. Relevantly, the only sense in which competing inferences are of significance in the assessment of the probative value of evidence is in the determination of whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. As was established in IMM, that is a determination to be undertaken taking the evidence at its highest. Accordingly, unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, the determination of probative value excludes consideration of credibility and reliability. Subject to that exception, the risk of contamination, concoction or collusion goes only to the credibility and reliability of evidence and, therefore, is an assessment which must be left to the jury. To the extent that GM or BM suggests otherwise, it should not be followed.
8. There is however every reason to anticipate that Ms Ross, and very likely other witnesses from whom the accused will be entitled to adduce tendency evidence will be subject to vigorous challenge by the Crown as to their credibility and reliability. Whether their evidence suffers from a lack of credibility and reliability so as to undermine its utility as tendency evidence are discreetly jury questions. Similarly, it will be for the jury to determine whether such evidence that is ultimately adduced in the trial consistently with my ruling that the accused may adduce tendency evidence has the capacity, in all the circumstances, to raise a reasonable doubt as to the accused's guilt, whether by raising the reasonable possibility that Ms AS alone was responsible for the infliction of the injuries from which the child died or by raising the reasonable possibility that Ms AS alone was responsible the multiplicity of other injuries revealed at post-mortem.

Other pre-trial rulings

1. At an earlier pre-trial hearing objection was taken by the accused to various aspects of the evidence upon which the Crown relies in proof of its case.
2. They included the following: 1. objection to a 3D rendering of the photographs taken at post-mortem into a digitised model under s 137 of the Evidence Act; 2. objection to the admissibility of admissions attributed to the accused upon his arrest on the afternoon of 19 December 2016 as being in breach of s 281 of the Criminal Procedure Act 1986 (NSW); 3. objection to the evidence of what the child's mother said to various people on the afternoon of 19 December 2016 including the accused's parents, paramedics and ambulance officers, police officers and social workers concerning the accused's alleged criminal responsibility for the death of the child as inadmissible hearsay; 4. opposition to the Crown's application to play a sound recording of an interview in which Ms AS voluntarily participated with police in the afternoon of 19 December 2016 as part of her evidence in chief as inadmissible hearsay.
3. What follows are my reasons for ruling on the various admissibility issues raised by the parties at the pre-trial hearing.

The admissibility of the 3D photographic imaging

1. The three 3D scans were produced by the utilisation of specialist computer software. The photographs from post-mortem have not been altered either by enhancement or otherwise but have been scanned and then rendered into a three interactive digital models of the deceased child - an interior view, a posterior view and a view that enables a visual appreciation of the injuries to the child's anal and perianal region. The exhibit can be manipulated by the audio visual operator to enable either a close-up or regulated view of some or all of the injuries seen in association with each other. The child's genitals have been pixelated as have the child's identifying facial features.
2. In the Crown's submission, the composite digitised model of the deceased child enables the jury to appreciate, in a convenient format, the range and spread of injuries identified at post-mortem reflecting, on the Crown case, the physical abuse to which the child was subject at the hands of the accused over a sustained period of time prior to her death without the need to adduce evidence from the pathologist and neuropathologist referable to a large number of individual post-mortem photographs.
3. The Crown suggested that the tendering of the 3D scans and their visualisation on the television screens in the court room will also obviate the need for the jury to have individual photographs as part of any jury bundle of exhibits thereby avoiding the jury having to deal with a large number of photographs. 3D scans would be available to the jury, at their request, in the ordinary course of the trial and during deliberations.
4. Mr Terracini submitted that the depersonalised form of the digital model of the deceased child was more confronting than a succession of still photographs of various images of her body at post-mortem and for that reason the scans had the potential to be productive of unfair prejudice to the accused far outweighing the probative value of the evidence, necessitating rejection as evidence under s 137 of the Evidence Act.
5. After undertaking my own analysis of the proposed tender of the 3D scans, and after viewing a large number of still photographs from the autopsy, I am of the view that the probative value of the evidence is not outweighed by the risk that the jury will either misuse the evidence or use it in such a way as to prejudice the right of the accused to a fair trial that directions cannot guard against. The probative value of the evidence is in my view measured by the clarity with which the injuries can be visualised that a mere description in words or indeed still photographs would not convey as clearly. I have already signalled my intention to the parties that the jury in waiting will be informed by me of the confronting nature of the evidence to be adduced at trial, including the need for them to attend to 3D images of the deceased child and her injuries, inviting prospective jurors to be excused from jury duty if they would find that material too distressing. (For the record, I note that 16 members of the jury were excused in advance of the first aborted trial after being advised that they would be required to attend to photographic evidence of the deceased child's injuries.)

Admissibility of the admissions made by the accused on his arrest

1. For the purposes of determining the admissibility of the admissions a voir dire was convened. The arresting officer, Snr Cst Dine, gave evidence and was cross-examined. The documentary tenders included two statements of Snr Cst Dine dated 19 December 2016 and 13 December 2017, a sound recording captured on Snr Cst Dine's mobile phone, a copy of Snr Cst Dine's police notebook entry dated 19 December 2016, the statement of Snr Cst Cornwell dated 19 December 2016 and the accused's ERISP dated 19 December 2016.
2. Acting on information that the accused may be at nominated premises at Fairfield, officers attached to the Public Order and Riot Squad attended at those premises and spoke to a female occupant. She directed police to Fairfield Park where police saw a person fitting the description of the accused. A number of council workers, adults and children were working or playing in and around the area. Two officers walked toward the accused, took him to the ground and handcuffed him. He was then secured in that position when he was first spoken to by Snr Cst Dine.
3. After notifying the accused of his identity as a police officer he said as follows You are under arrest for murder. You don't have to say or do anything if you don't want to but anything you do say or do I will record and can use that recording as evidence in court do you understand.
4. The accused responded, "yeah".
5. The accused was then searched and lifted to his feet by Snr Cst Dine and another police officer and walked away from members of the public towards Riverview Road where the police vehicles were parked.
6. Snr Cst Dine was not equipped with a police issue recording device when he first spoke to the accused. He did however have a mobile telephone with a sound recording capacity at his disposal, albeit in his pocket. I accept his evidence that he did not intend to engage in any official questioning of the accused until such time as either his mobile phone was free for use or he could access a police issue recording device and did not, for that reason, remove it at the point of arrest.
7. In the process of escorting the accused to the police vehicles the following exchange took place: Snr Cst Dine: You know this is serious. It's murder. Accused: I didn't mean to kill her. Snr Cst Dine: What do you mean? Accused: I didn't mean to kill her I tried to give her CPR.
8. In his statement, and as confirmed in his evidence on the voir dire, Snr Cst Dine said that as the accused was speaking he was trying to get his mobile phone out of his pocket to record what was being said but was unable to do so before the very brief exchange concluded. He gave further evidence that before ultimately reaching the police vehicle with the accused under escort he did take the opportunity to get out his mobile phone for the express purpose of inviting the accused to repeat the information that he had just volunteered so that it could be recorded, consistent with what I accept the police officer understood were his obligations to record the admission the accused had volunteered were it to be admissible in evidence.
9. The recording was played on the voir dire. I am satisfied from the tone and tenor of the recording that the officer was endeavouring not only to give the accused the opportunity to give an account that he had seemed willing to volunteer after he had been cautioned at the point of arrest, but to also give him the opportunity to adopt what he had earlier said about the killing of the child without questioning him. It is also clear from the recording that what the accused said about the killing of the child when the mobile phone was being used differed from what the police officer recorded in his statement as the information the accused had volunteered.
10. When the phone was activated, Snr Cst Dine asked the accused to "repeat what [he] just said". The accused said as follows: My stepdaughter was having seizures. It happened for the past [say] week. I just moved in with my wife to my house in Guildford [address omitted] and my stepdaughter had seizures every couple of days for a week. I tried to help her, you know, and today she was having a seizure, then she stopped breathing.
11. Snr Cst Dine then said "[w]hen I first started walking over, the first thing you said was 'I didn't kill her', is that correct?" The accused said "yeah, that's correct", to which Snr Cst Dine responded "I didn't mention anything with regards to her, is that correct", to which the accused responded "yeah, that's correct". The accused was then informed he would be detained and spoken to by interviewing officers later.
12. What was put to the accused and adopted by him in the recording was that he did not (in fact) kill the child. This is in contrast with what Snr Cst Dine said the accused had earlier volunteered when he said that he did not mean to kill the child. It is this admission that is recorded in the officer's statement. The officer gave evidence that his statement was derived from a timed entry he made in his notebook upon arriving back at the police truck and that he believed at that time that entry was an accurate account of what the accused had said. He gave evidence that he did not, at that time, appreciate that what he had put to the accused in the sound recorded version differed significantly from what the accused had said. He gave the sound recording to the interviewing officer.
13. On the construction for which the Crown contends the admission recorded in the officer's statement and notebook constitutes an admission that the accused killed the child (that is he was the person who inflicted the acts causing death) but that he did not do so intentionally. On the assumption that the officer's oral evidence of what the accused said is admissible, whether the admission should be construed in that way is of course a question for the jury.
14. In the course of a formally convened ERISP conducted by investigating detectives later on the afternoon of 19 December 2016, the sound recording of the conversation Snr Cst Dine had with the accused, in which he offered him the opportunity of formally adopting what at that time Snr Cst Dine believed he had said as the accused was being escorted, was played. The accused agreed that the recording was of a conversation he had with Snr Cst Dine (the text of the recording is not reproduced in the ERISP).
15. I am satisfied that that the sound recording on the mobile phone was provided to the interviewing detective by Snr Cst Dine in the mistaken belief that he had accurately recorded the oral account the accused gave when he was being escorted to the police van. I also accept on the evidence adduced on the voir dire that Snr Cst Dine did not realise until 2017, when the matter was being prepared for trial, that there was a material disconnect between what the accused had said to him as to the killing of the child when he was under escort (as recorded in his notebook and in his statement) and what Snr Cst Dine invited him to adopt as the words he used on the telephone sound recording.
16. Although Mr Terracini made it clear that his client disputes the terms of the admission attributed to him in Snr Cst Dine's statement and in his notebook, the submission was not advanced that the notebook entry had been created after the event to enhance the probative weight of a false admission, even less so to convert a denial of killing the child into an admission that he killed the child but not intentionally. No questions were put to the officer in cross examination to suggest this was the case. Rather, Mr Terracini submitted that admissibility of the unrecorded admission (that is the admission that was not recorded by either audio or visual means) is governed by the operation of s 281 of the Criminal Procedure Act and that the section operates to render the evidence inadmissible.
17. That sections provides: 281 ADMISSIONS BY SUSPECTS (1) This section applies to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995 ) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4) In this section: "investigating official" means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. "official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. "reasonable excuse" includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. "tape recording" includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording.
18. The accused submitted that in circumstances where Snr Cst Dine's evidence of a conversation with him under escort after arrest is relied upon by the Crown as an admission to having killed the child, and that it was made at a time when he was both suspected by Snr Cst Dine of having murdered the child and that it was made in the course of official questioning for that offence, s 281(2) provides that the evidence of the admission must be excluded where it was not tape recorded and where Snr Cst Dine has no reasonable excuse for failing to tape record it. The accused further submitted to the extent that the Court is satisfied that Snr Cst Dine has a reasonable excuse for failing to tape record the admission, he had no reasonable excuse for failing to have given the accused the opportunity to adopt the admission in the ERISP.
19. I am not persuaded that the oral (unrecorded) admission (that the accused did not mean to kill the child) was made in the course of official questioning. That admission was neither made responsive to a question asked by Cst Dine nor an admission made in the course of official questioning by him as defined in s 281(4). It was not made responsive to a question at all but volunteered by the accused after being informed by Snr Cst Dine (as an arresting officer cf an investigating officer) that his arrest for murder was serious.
20. In R v Donohue [2017] NSWCCA 174 at [94]-[102] I considered the authorities that inform the circumstances in which s 281 will operate to prohibit the admission into evidence of an unrecorded admission and, in particular, Bryant v R [2011] NSWCCA 26 where a conversation between a custody manager and the appellant, namely "Do you understand that you're going to be charged with several armed robbery offences?" eliciting a response including an admission to his involvement in some but not all of them, was not held to be an admission made in the course of official questioning. Howie AJ (with whom McClellan CJ at CL and Simpson J agreed) considered the concept of questioning to involve more than simply asking a person whether he or she understands the information that is being conveyed to them. I regard what Snr Cst Dine said to the accused as he was being escorted to the police van to be in the same category.
21. As I am not satisfied that the accused's admission to having killed the child, albeit intentionally, was made in the course of the official questioning, s 281 has application. It was not submitted that there was any additional basis upon which the evidence ought be excluded. Accordingly, the application to exclude the admission - "I did not mean to kill her" - is refused.
22. I am satisfied, however, that the accused's volunteered statement that he did not mean to kill the child which then prompted the officer to ask what the accused meant by that statement was in the form of a question seeking information in the course of official questioning. Whilst, on one view of the authorities, that question might also be interpreted as directed to seeking clarification of what had previously been volunteered by the accused rather than a discrete question asked in the course of official questioning, the competing inference, and which I favour, is that it was a question asked at that stage in the course of official questioning as that concept is defined in s 281(4).
23. That being the case, the question then arises as to whether Snr Cst Dine had a reasonable excuse for deferring asking that further question until such time as a recording could be made of it, in effect, by deferring further questioning until he had removed his mobile phone from his pocket. Self-evidently, the officer had recording equipment available, since he used his mobile phone as a substitute recording device when he did seek to record what the accused had said to him (albeit inaccurately) some minutes later. That being the case, I am not satisfied that he had a reasonable excuse for not recording the ongoing course of the conversation by desisting further questioning until such time as the telephone was activated to record it. In those circumstances, I do not propose to admit the second and qualifying admission - "I didn't mean to kill her. I tried to give her CPR". If it is the accused's preference that that qualifying admission be lead as part of the Crown case there would clearly be no basis why the Crown could not do so.

The admissibility of various statements made by the child's mother on 19 December 2016 attributing responsibility for the death of the child and the injuries she sustained to the accused

1. Save only for the statements made by Ms AS to two unidentified social workers overheard by Cst Stagg and recorded by him in his statement, all other statements were made to the witness whose evidence is the subject of objection and, in most cases, responsive to a question asked of her as to what happened to the child. Those people include the accused's father, his wife, a neighbour of the accused's parents, a paramedic, Kevin McSweeney, and a police officer, Cst Bernhardsson.
2. The Crown anticipates that Ms AS will give evidence of her direct dealings with these people and what she said to them in the course of her evidence in chief. The Crown also anticipates that she will be called before any of the witnesses are called. Were that to occur, the exception to the hearsay rule in s 66(2) of the Evidence Act is available to be invoked, entitling the Crown to adduce the evidence of what Ms AS said to each of them when they are called as witnesses in the Crown case. In the event that Ms AS does not give evidence of speaking with one or more of these witnesses, or she does not give evidence largely consistent with what they have detailed in their statements, the accused may make such further application as he considers appropriate in the course of the trial.
3. The witnesses whose evidence falls into this category are as follows:

Statement of Gailene Cuthbert dated 19 December 2016

1. Upon Ms AS opening the car door on arrival at the accused's parents' home, she yelled "[h]elp me. He killed my baby". In a state of what Ms Cuthbert describes as inconsolable crying, screaming and shaking, AS said as follows: "He killed [DB]; he bashed her head on the ground". When Ms Cuthbert asked "when, why, how and what happened?" She said "it happened at 3 o'clock. He has been bashing her for the last week now. He has been bashing her head and whipping her."

Statement of Billal Maaliki dated 19 December 2016

1. Mr Maaliki was alerted to a female screaming across the road from the premises in which he resided. He saw people who he describes as an elderly man and lady (clearly the accused's parents) attending to a younger woman who was screaming. He heard somebody say something like "my daughter's dead. He killed her". He does not identify who said those words.

Statement of Kevin McSweeney dated 20 December 2016

1. Mr McSweeney is a paramedic. He attended the accused's parents' premises in Guildford West in response to a 000 call. At the time he arrived, police officers and other paramedics, including Inspector Kiely, were attending to the deceased child who was at that time lying on the front lawn being actively resuscitated by application of defibrillation pads.
2. He then spoke with the person who other evidence will identify as Ms AS on escort to the emergency vehicle. During the course of the drive to the Children's Hospital at Westmead, Mr McSweeney had the following conversation with her which the Crown intends to adduce in evidence: 10. … I had a short conversation with a Police Inspector. I asked her if Police needed to speak to the mother prior to me taking her to hospital. The Inspector said "Just give us a minute and then it should be ok for you to take her". As a result, I escorted [Ms AS] to my vehicle and placed her in the front passenger seat. A short time later, I drove her to Westmead Children's Hospital. During this drive, I had a conversation with her. I said - "How did this happen?" She said - "My boyfriend bashed my baby". I said - "Did you see this happen?" She said - "Yes" I said - "When did this start?" She said - From the start. I met him almost 2 months ago, but it got bad today". I said - "Why didn't you do something about it?" She said - "He said I would end up the same way if I said anything". I said - "How did you meet him?" She said - "On Facebook" I said - "What actually happened today?" She said - "She was unconscious from about 12 o'clock. I couldn't wake her up, but she was breathing, but she was sort of grinding her teeth and he body was moving and shaking a bit. After that she was still breathing but then she was snowing a bit. After a while, I noticed her breathing was slower but she was still unconscious".
3. Attached to Mr McSweeney's statement is a file note recorded in a diary entry of 19 December 2016, signed by him and dated 20 December 2016.

Cst Bernhardsson dated 19 December 2016

1. It appears Cst Bernhardsson was one of the first responding police officers. He describes approaching a "crying female" in the course of which, after identifying the child (at that time in the back of the car) he had the following conversation: 7. I have walked around the vehicle where I observed the legs of a baby's legs in the left rear passenger seat. The legs were pale while and was not moving. Other police present at the scene was also attending ot the baby so I have returned to the crying female. I said - "What happened?" She said - "He killed her" I said - "Who did? Where did it happen?" She said - "At home" I said - "Where's home?" 8. I took out my notebook and noted down what she was saying. She said - "XX XX St, Guildford" I said - "Who did it, what's his name?" She said - "Mohammed Khazma" I said - "What's his date of birth?" She said - "XX/XX/1993". I said - "What time did you leave you the house?" She said - "3.14" I said - "Was he still there when you left?" She said - "Yes" I said - "What does Mohammed look like? What was he wearing?" She said - "Black shirt, black hat. A bit taller than me". I said - "How tall are you?" She said - "5'6 so she would be around 5'8" I said - "what's his build?" She said - "Stocky". 9. I have relayed this information with the mobile supervisor, Acting Sergeant Varlet who updated radio with the information.

Snr Cst Stagg dated 21 December 2016

1. The only relevance of Cst Stagg's evidence is his overhearing a conversation between Ms AS and two people he described as "two unidentified social workers from the hospital", in the course of which Cst Stagg heard Ms AS say "He bashed her … he burned her with a lighter … he tried to do CPR on her but there was vomit coming from her nose … he wouldn't let me take her to the hospital but I convinced him to let me take her to my aunty's house so we could get help".

PC Snr Cst Embleton dated 21 December 2016

1. PC Snr Cst Embleton arrived at the scene and walked towards uniformed police at which time the deceased child was being carried to the ambulance. As this was occurring, he spoke with Ms AS and said: I said - "Are you mum"? She said - "Yes". I said - "What has happened?" She said - "Mohammed bashed her head and whipped her all week. There is bloody clothes in the house at XX Street". I said - "What is at XX Street?" She said - "where we live".

Admissibility of recorded statement of Ms AS

1. The Crown sought to adduce the recorded interview of Ms AS conducted on 19 December 2016 and to play it to the jury as part of her evidence-in-chief. In the interview, Ms AS gives an account of the actions of the accused in the days leading up to the child's death inclusive of an account of the injuries caused by the accused and admissions apparently made by him.
2. The Crown submitted that there are three legislative provisions which permit the admission of the interview into evidence notwithstanding the operation of the hearsay rule and the playing of the recording to the jury as part of Ms AS's evidence in chief. They are as follows: 1. Section 66 of the Evidence Act 1995 (NSW); 2. Section 289 of the Criminal Procedure Act 1986 (NSW); 3. Section 306 of the Criminal Procedure Act 1986 (NSW);

Section 66 of the Evidence Act

1. Section 66 provides an exception to the hearsay rule in criminal proceedings where the maker of a previous representation is available. For present purposes, that exception is ordinarily engaged if the maker of the representation made the representation at a time when the fact or facts sought to be asserted by the making of the representation was fresh in the memory of the maker (s 66(2)). The difficulty for present purposes is that s 66(3) provides that if the representation was made for the purpose of indicating the evidence that the maker would give in an Australian or overseas proceedings, s 66(2) does not apply and, subject to any other basis upon which the evidence might be admitted, it is caught by the hearsay rule.
2. While I accept the Crown's submission that the representations made by Ms AS in the recorded interview were fresh in her mind at the time that they were made, I am also satisfied that s 66(3) is engaged and the exception to the hearsay rule cannot be invoked.
3. Section 66(3) provides as follows: (3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing. (Emphasis added.)
4. The Crown submitted that this exclusion is not absolute. It obliges the Court to undertake an examination into the purpose for which the representation was made with the subjective purpose of the person making the representation the focus of that enquiry. The Crown submitted that, in the circumstances of this case, the recording should be admitted as part of Ms AS's evidence in chief because she did not intend what she told police to be an indication of "the evidence she would be able to give".
5. The Crown relied upon the judgment of Wood CJ at CL in the Court of Criminal Appeal in R v Esposito (1998) 45 NSWLR 442 at 451 where his Honour stated: In coming to this conclusion, I do not mean to suggest that s 66(3) will absolutely exclude as inadmissible, hearsay evidence from a witness of all representations made to him by another person who is available to give evidence, and which relate to matters other than identity. In each case, the question will turn upon the purpose for which the representations were made by that other person. Clearly on one side of the dividing line will be a statement, prepared in the form of a proof of evidence, crystallising the product of one or more interviews with him. On the other side of the line will be the product of routine investigations, where it is not known whether the person spoken to and making the representations is a suspect, or a potential witness. The present case crosses the borderline, only because the witness made it expressly clearly, from the outset, that he was making the representations for the purpose of disclosing the evidence that he would be able to give, in a prosecution of the principal offender, and referred to himself more than once, in the course of the discussion or interview, as a "witness".
6. The purpose for which the Crown contends that Ms AS participated in the interview was to disclose "everything that Mohammed had done to her so that [the doctors] would have the best chance of saving her life". The Crown called no evidence from her in support of that submission.
7. On the construction of s 66(3) and the passage of Esposito extracted above, there is some merit in the Crown's argument that s 66(3) is concerned with the subjective purpose for which the representation was made and that an enquiry of the witness to that end may in some cases be productive, even determinative. It is not, however, an issue which I need to resolve. I am satisfied that on any reading of Ms AS's interview she made it clear that she understood she was participating in the interview process for the purpose of indicating the evidence that she would give in proceedings as a witness, albeit not at that time making patent her appreciation that it would be proceedings in which the accused was charged with murder. That said, there is simply no evidence that she participated in the interview to assist the doctors treating her child to save her child's life. The following exchange occurs at the commencement of the interview: Q3. Alright [Ms AS] so as I said we're just going to electronically record a statement in regards to what's happened today, all right? Q. O.K. Q4. Will this statement made by you accurately set out the evidence that you will be prepared if necessary to give in court as a witness? A. Yes. Q5. Yes. Will this statement be true to the best of your knowledge and belief? A. Yes. Q6. Do you make this statement knowing that if it's tendered in evidence you will be liable to prosecution if you have wilfully stated in it anything you know to be false or do not believe to be true? A. Yes.
8. Additionally, Det Snr Cst Quinn (one of the interviewing officers) gave a statement dated 21 December 2016 where he outlined his dealings with Ms AS on 19 December 2016 and his exchange with her prior to the commencement of the recording. At paragraph 12 of that statement he states the following: 12. Detective Senior Constable Kristy Sutcliffe and I walked with [Ms AS] to a separate 'family room' located within the emergency department. When we got into the room I had a conversation with [Ms AS]. I said, "[Ms AS] as I explained to you earlier we are investigating the incidents that have occurred with your daughter. Do you understand that?" [Ms AS] said, "Yes". I said, "I understand that you have already told a few police officer about what has happened, but I want to electronically record your statement onto this recorder. Would that be ok?" [Ms AS] said, "Yes". I said, "This recording will be your evidence and can be used in court. Do you understand that?" (Emphasis added.) [Ms AS] said, "Yes".
9. I am satisfied that s 66(3) is engaged and the tender of Ms AS's interview with police by the Crown must be rejected as inadmissible hearsay.

Section 289F of the Criminal Procedure Act

1. Part 4B of the Criminal Procedure Act is entitled "Giving of Evidence by Domestic Violence Complainants". Section 289F of the Criminal Procedure Act, which falls within Part 4B and provides as follows: (1) In proceedings for a domestic violence offence, a complainant may give evidence in chief of a representation made by the complainant wholly or partly in the form of a recorded statement that is viewed or heard by the court. (2) A representation contained in a recorded statement may be in the form of questions and answers. … (5) A complainant who gives evidence wholly or partly in the form of a recorded statement must subsequently be available for cross-examination and re-examination: (a) orally in the courtroom, or (b) in accordance with any other alternative arrangements permitted for the complainant under this or any other Act. (6) This section does not prevent a complainant from giving evidence in any other manner permitted for the complainant under this Act or any other law.
2. The Crown contends that the offence with which the accused is charged is a "domestic violence offence" as defined and that Ms AS is a complainant for the purposes of s 289F for that reason. "Complainant" is not defined.
3. "Domestic violence offence" is defined in s 3 of the Criminal Procedure Act as a domestic violence offence "within the meaning of the Crimes (Domestic and Personal Violence) Act 2007". Section 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) defines a personal violence offence as follows: (1) In this Act, "domestic violence offence" means an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship, being: (a) a personal violence offence, or (b) an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or (c) an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both).
4. Personal violence offence is in turn defined in s 4 of the Crimes (Domestic and Personal Violence) Act as including an offence under s 19A of the Crimes Act 1900 (NSW) which relates to murder.
5. The Crown submitted that since murder is a domestic violence offence (as defined), it follows that Ms AS is a complainant for the purposes of s 289F and her evidence may be given in the form of the ERISP. The Crown submitted that the category of people to whom the term "complainant" applies must be broader than an alleged victim of that offence. Otherwise, the provision could have no application to the offence of murder where logic dictates the victim is deceased. The Crown also submitted that a construction of the section to include Ms AS within the meaning of the term "complainant" would promote the purpose or object underlying the Act. Such a construction should be preferred to a construction that would not promote that purpose or object (Interpretation Act 1987 (NSW), s 33).
6. The Crown submitted that the extension of the meaning of "complainant" to include Ms AS is justified by the unusual factual circumstances of this matter, in particular by the special relationship and the duty of care that exists between a parent and child. The alleged victim was a young child. The witness was her mother. The witness was in an intimate domestic relationship with the accused. The witness alleges that she was also subjected to physical violence by the accused. The child resided with the witness and the accused.
7. I am not satisfied that Ms AS is a complainant for the purposes of Part 4B of the Criminal Procedure Act. A complainant is universally understood to be the person against whom an offence is alleged to have been perpetrated, most commonly a sexual offence, although as s 289F makes clear that is not exclusively so. Self-evidently, for present purposes that person is not Ms AS. If it was intended that a witness to a domestic violence offence (as Ms AS is) might also be permitted to give evidence against a perpetrator of violence upon another in the form of a recording, I am satisfied that Part 4B of the Act would have been drafted in such a way as to make that intention express.
8. Section 306 of the Criminal Procedure Act
9. Finally, s 306 of the Criminal Procedure Act provides that a vulnerable person is entitled to give evidence in chief of a previous representation wholly or partly in the form of a recording made by an investigating official.
10. Section 306M defines a vulnerable person as "a child or a cognitively impaired person". In turn, cognitively impaired person is defined as follows: "cognitive impairment" includes any of the following: (a) an intellectual disability, (b) a developmental disorder (including an autistic spectrum disorder), (c) a neurological disorder, (d) dementia, (e) a severe mental illness, (f) a brain injury.
11. The definition of "vulnerable person" is an exhaustive definition. Thus, Ms AS must be a cognitively impaired person if she is to be regarded as a vulnerable person (as she is not a child). While the definition of cognitive impairment is not itself exhaustive, on the evidence before me on the voir dire, being the report of Anne Lucas, psychologist, dated 5 May 2018 and Dr Andrew Ellis, psychiatrist, dated 11 June 2018 (neither of whom gave evidence on the voir dire) I am satisfied that the only respect in which Ms AS may be regarded as a cognitively impaired person if I was satisfied that she suffers from a severe mental illness.
12. Ms Lucas assessed Ms AS's cognitive function during an assessment conducted at the Cessnock Correctional Facility on 1 May 2018. She recorded the following in respect of Ms AS's cognitive function: "Her processing of complex visual information without using words was an area of strength for her whilst making sense of complex verbal information and using verbal ability to solve novel problems were less developed." ""[Ms AS's] full score IQ as measured by the WAIS-IV would be estimated to be in the average range." "[The] full score IQ suggested that when compared to individuals of similar age her overall intellectual function would fall below 47% of her peers". ""[Ms AS's] General Ability Index was calculated to be within a 95% confidence interval score range of 101 - 111. This would place her in the average descriptive band compared to her peers." ""[Ms AS's] verbal reasoning ability were calculated to be within the average range of performance and above that of 39% of her peers." "[Ms AS's] ability in perceptual reasoning placed her in the high average range and above approximately 87% of her peers." "Working memory - the working memory index of the WAIS IV measures an individual's ability to sustain attention, concentrate, and exert mental control. [Ms AS] performed better than only 13% of her peers in this area placing her performance in the low average range. Her 95% confidence interval score in this domain (77 - 91) suggested that her overall cognitive performance may be hindered by a weakness in mental control, such difficulties are found in individuals with attentional difficulties".
13. Dr Ellis did not undertake an assessment of Ms AS's cognitive function, though noted Ms Lucas's findings, observing that "formal intelligence measures plac[ed] her in the average range". He also noted that Ms AS describes ongoing attentional problems and reported MS AS having been diagnosed with ADHD in childhood which he considered "should be evaluated for once her current situation is more stable". Accordingly, on the evidence before me I am not satisfied that Ms AS suffers from an intellectual disability. Aside from a below average "working memory", Ms AS scored either in the low average, average, or high average range for each of the assessed areas of cognition.
14. In respect of whether Ms AS suffers from a "severe mental illness", Dr Ellis records that Ms AS was prescribed, at the time of his interview with her on 9 June 2018, 45mg of mirtazapine (an anti-depressant medication) and 50mg of quetiapine (a low-dose of antipsychotic medication). He records that Ms AS has intermittently seen Justice Health psychiatrists and was seeing a Victim Services psychologist weekly when incarcerated in Cessnock (Ms AS having been incarcerated at Silverwater Women's Correctional Centre at the time of his assessment of her).
15. In his diagnosis of her, Dr Ellis opined that Ms AS meets the criteria for post-traumatic stress disorder with Ms AS describing nightmares and flashbacks "as re-experiencing phenomena", together with avoidance behaviour and panic attacks with autonomic arousal. Dr Ellis noted Ms AS's reports of hyper-vigilance and an "increased startle response". While Dr Ellis observed that the symptoms have been present "for a number of years", he considered that they have been exacerbated by "more recent stressful events"; most prominently the death of her daughter.
16. Dr Ellis also diagnosed a personality disorder with borderline and dependent traits related to Ms AS's complex early trauma, as to which he observes as follows: [Ms AS] describes an unstable self-image, and a strong urge to enter into abusive relationships and subordinated her decision-making within those relationships. She fears being abandoned in a relationship. She has engaged in disordered eating and shows an unstable emotional state with impulsive behaviour, irritability and anger. She has chronic morbid ideas. She had tended to reject help when offered, and engage in risk taking behaviours. The separations of her parents, death of a parent and abuse at young age are consistent with this diagnosis. The emotional instability, impulsivity and rigid ideas associated with personality disorder are exacerbated at times of interpersonal conflict, and are more ameliorated in times of relational stability.
17. Dr Ellis opined that Ms AS did not present with a major depressive episode, though accepted that her treatment with antidepressant medication may have been masking symptoms of such a disorder.
18. Ms Lucas opined that Ms AS "did not present with symptoms of a mental illness within the description of the Mental Health Act 2007 (NSW)", but that she would "fulfil the diagnostic requirements outlined within the Diagnostic and Statistical Manual of Mental Disorder - fifth edition for Post-traumatic Stress Disorder and Major Depressive Disorder". Ms Lucas opined that individuals who experience such a condition: [C]an present with chronic depression complicated by dissociative symptoms, substance abuse, impulsivity, and self-harm. The characterological changes in survivors of prolonged abuse include deformation of identity formation which has been linked to vulnerability to repeated harm. The complex nature of the presentation results in more diffuse and tenacious symptoms than in 'simple PTSD.
19. While I acknowledge and accept the diagnoses of Dr Ellis and Ms Lucas, I am not satisfied that they have diagnosed a "severe mental illness". Additionally, bearing in mind that "severe mental illness" is a subcategory within the category of "cognitive impairment", I am not satisfied that Ms AS's mental illness so impacts upon her cognition as to render her cognitively impaired. I consider that there must exist a nexus between severe mental illness and cognition (exceeding that which is apparent in the instant case) before a severe mental illness will satisfy the definition of "cognitive impairment". Ms Lucas and Dr Ellis do not opine that Ms AS's PTSD will impair her ability to give evidence in these proceedings, or limit her ability to clearly articulate her thoughts. Her provision of statements to police indicate that her recall of the events is satisfactory.
20. Accordingly, I am not satisfied that any of the bases advanced by the Crown as permitting the tender of Ms AS's recorded interview conducted on 19 December 2016 are made out. Ms AS's evidence-in-chief will need to be adduced by the Crown viva voce.

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