R v Latu

Conclusion (9) The tendency and relationship evidence in issue is admissible.

1. This judgment constitutes expanded reasons for this decision.

Crown Case for Murder

1. The evidence placed before me on the voir dire by way of Crown Case Statement, two volumes of statements and records and the written and oral submissions of the Crown Prosecutor, show that the Crown Case in support of the murder count on the indictment is as follows.
2. On 7 August 2016, the accused murdered his then domestic partner, Rhonda Baker, by inflicting blunt force trauma to her head causing her death.
3. On the Crown case, there is evidence of a history of violence, abuse, jealousy, and controlling behaviour by the accused towards the deceased during the course of their relationship.
4. In response to a 000 call made at about 4.24am on 7 August 2016, ambulance officers arriving at the unit where the accused and deceased lived observed the deceased to be wearing a t-shirt and pants with a bruised face, both eyes swollen shut, pink fluid frothing from her mouth and no pulse.
5. The autopsy report described on external examination multiple blunt force injuries involving fractures to the face and nasal bones including a blow-out type fracture of the right orbit, as well as swelling over her forehead and eyelids.
6. The accused and deceased had been in an "on again, off again" relationship since April 2007. During 2012, the accused moved in with a Hayley Bingley, with whom he had a child in August 2012. In early 2013, he resumed his relationship with the deceased, and they moved in together in about March 2016.
7. On 6 August 2016, the accused and the deceased spent the afternoon together shopping and meeting with various friends and associates. The evidence indicates that at 10.06pm, the deceased's car is seen travelling on Bathurst Street towards their unit at 57-61 Bathurst Street, Liverpool. There is evidence that the deceased's vehicle did not leave the block of units at Bathurst Street again. This is significant because in his ERISP the accused says he left again, about an hour later, in the car.
8. At about 3.35am and again at 4.05am, a neighbour heard male and female voices arguing in the courtyard area of the units near unit 14.
9. During the 000 call, the accused told the operator that his girlfriend was "down" and that he "thinks she got jumped in the street", as well as telling the operator that he came home with her and that she was not breathing.
10. The accused participated in an ERISP on 7 August 2016 between 8.24am and 10.03am in which he gave a version that he had returned home with the deceased and then went out again, to Auburn, met up with some friends, smoked some ice, and came home, and that on his arrival he saw the deceased in the bathroom wiping herself with tissues and washing her face, and that she told him that she had "got jumped" and he asked by who and she said she didn't know, and that she later collapsed.
11. The Crown case is that the deceased and the accused argued and that the accused resorted to violence, inflicting the fatal injuries upon the deceased.
12. It appears the defence case will be that the accused did not do the act or acts causing death as reflected in the plea of not guilty. The defence position is that somebody else inflicted the injuries upon the deceased.

Tendency Notice

1. The relevant parts of the tendency notice upon which the Crown moved were as follows: 1. The person whose "tendency" is the subject of the evidence sought to be adduced is the accused, Onitolosi Etuini Latu. 2. The Indictment contains one count of Murder. The Crown relies upon two general areas for the purpose of adducing tendency evidence: ()i) the accused was violent towards Rhonda Baker ("the deceased") whilst in an intimate domestic relationship with her; and (ii) the accused was violent towards Hayley Bingley whilst in an intimate domestic relationship with her. 3. The Crown relies upon these two areas to demonstrate that the accused had a tendency to act in a particular way or particular ways, namely, In relation to the deceased • whilst in an intimate domestic relationship with the deceased and when angry at her, to be violent towards her by the use of physical force to the head region. In relation to Hayley Bingley • whilst in an intimate domestic relationship with Hayley Bingley and when angry at her, to be violent towards her by the use of physical force to the head region. In relation to women with whom he was in an intimate domestic relationship • when angry, to engage in violence towards such women by the use of physical force to the head region.

Tendency evidence

1. The following summary is based on the table provided in paragraph 4 of the Notice and is in the form of a general description of the incident or conduct, the date and place it occurred, and extracted in summary form from the statement(s), medical record(s) or court file the evidence sought to be adduced in respect of each incident.
2. There are eight identified incidents of attacks by the accused to the head of the deceased and the accused's previous domestic partner Ms Bingley after becoming angry with little or no reason.
3. No issue has been taken in respect of attacks to the deceased that are described as having occurred between early 2014 and July 2016 (incidents numbered 4-8 in the Notice). Incident 4 in early 2014 involved the accused smashing a TV and assaulting the deceased including ripping out her hair. She was later observed with a cut to her lip, a bruised left eye, bruising to her elbow and arm and a very large bruise to her right thigh.
4. Incident 5 is said to have occurred around 6 March 2015 involving the accused and the deceased travelling in a motor vehicle when the accused hit the deceased and slammed her head into the car door several times, causing bruising to the eye area, a lopsided face and inability to properly close her eye.
5. No objection was taken either to evidence of the sixth incident on 31 October 2015, evidenced by an attendance by the deceased at the Fairfield West Medical Centre on 30 October 2015 with a swollen lip which later became infected, combined with evidence of a Ms Drayton that the deceased had told her that the accused had punched her in the face.
6. Incident 7 is also not objected to. That involved another motorist in April 2016 observing the accused punching the deceased twice in the face whilst the deceased was driving, and reporting it to police and leading to an AVO.
7. Incident 8 in July 2016 also was not objected to and involved evidence of the deceased being observed by work colleagues to have a swollen and bruised face and jaw, with a black eye and significant swelling to the left side of her face which the deceased had told colleagues was because she had "answered back" the accused during an argument.
8. Issue was taken however in respect of incidents that occurred earlier numbered 1, 2 and 3 in the Notice.
9. Incident 1 was said to have occurred in 2010 or 2011 when the accused is said to have slammed the deceased's head into a car window when she was driving. The deceased had made a complaint about this to her friend, Ms Marfutenko.
10. The second incident involved an attack on Hayley Bingley in June 2013 where the accused was observed to have kicked Ms Bingley to the head causing swelling and bruising to her face and pulling her hair.
11. This was followed by the third incident, also involving Ms Bingley, where in July 2013, the accused punched her in the face around the eye area, rendered her unconscious and punched and kicked her whilst she was unconscious and tried to lift her by the hair. He pleaded guilty and was convicted and sentenced in relation to this attack.

Submissions against admissibility of the tendency incidents 1, 2 and 3 made by defence counsel

1. In written submissions, defence counsel argued that evidence which is "distant in time", defined as more than three years before the homicide, is inadmissible because it is unfairly prejudicial and may overwhelm the jury and cause them to be diverted to their central task of reaching a verdict in relation to the events of 6 or 7 August 2016. Whilst acknowledging that there is no authority or principle that supports an arbitrary 3 year cut-off, senior counsel for the accused argued that it would be a "prudent requirement" for the evidence to have current relevance, and so have probative value that could substantially outweigh any prejudicial effect as required by the Evidence Act 1995 (NSW) s 101(2).
2. Reliance was placed on The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40 at [50]. In the context of a discussion regarding previous decisions of that court and the circumstances analysed by it in HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, the Court said the following: [50] Since proof of an accused's commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.
3. Senior counsel for the accused argued that this statement meant that any court considering the question of tendency evidence, needed to ensure that such events were not "too far separated in point of time".

Submissions in favour of admissibility made by the Crown

1. Incidents 2 and 3 occurred approximately 3 years before the homicide (3 years and 1 month and 3 years and 2 months prior respectively) so even if there was a rule of thumb in respect of 3 years, these attacks occurred at around about 3 years before the murder of the deceased. More to the point, there is no such arbitrary principle and no such "magic number".
2. The context of the assaults is exactly the same, that is, living in Sydney with a partner, and close in time to other similar incidents of assault upon the deceased. The incidents with Ms Bingley occurred in a hiatus between when the accused first commenced his relationship with the deceased and resumed after, and so the events with Bingley should be considered as part of a continuum, particularly given the context is identical.
3. The evidence of the attacks on Ms Bingley is highly significant as there will be eyewitness accounts of the way in which the attacks occurred, particularly the evidence of Ms Pinto, which indicated that with little provocation, the accused attacked, punched and pulled the hair of Ms Bingley and in relation to the other incident, jumped over a table and punched Ms Bingley in the face. The eyewitness accounts of the way in which the attacks occurred are highly probative.
4. In respect of the injury to Ms Bingley's face, there is commonality between the injuries upon her and those found on deceased on 7 August in that her eyes were observed to be swollen shut. The jury will be assisted by that evidence. The evidence in relation to the attacks on Ms Bingley, particularly given the common features, is compelling.
5. Incident 1, although in 2010 or 2011, must be viewed in the context of the relationship as it indicates an ongoing course of conduct by the accused in his relationship with the deceased, and then with Ms Bingley, and then again with the deceased, and was a course of conduct that resumed to a point of escalation in the murder of the deceased.

Determination

1. The starting point in considering the admissibility of asserted tendency evidence tendered by the prosecution is to be found in ss 55, 97 and 101 of the Evidence Act 1995 (NSW), along with the definition of "probative value" to be found in the Dictionary of that Act. The analysis of the relevant statutory test is helpfully carried out by the High Court in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 and in The Queen v Bauer (a pseudonym) [2018] HCA 40.
2. I must start with the issue of whether the disputed evidence is relevant. The test of relevance is set out in s 55 and provides as follows: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence.
3. In my opinion, the evidence of assaults by the accused upon the deceased and Ms Bingley is undoubtedly relevant to the facts in issue in the trial in that it could rationally affect, directly or indirectly, the assessment by the jury of the probability of whether or not the accused engaged in the conduct leading to the death of the deceased on 6 to 7 August 2016.
4. I do not understand defence counsel to argue to the contrary of that analysis. The argument was directed to the assertion that the evidence of attacks in June and July 2013 and 2010/11 are "too old" or "too stale" to assist the jury, not that it is not relevant. In my view, they are all relevant and easily pass the s 55 test.
5. The "tendency rule" is set out in s 97 Evidence Act which provides as follows: 97 The tendency rule (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) …
6. In making a determination about the probative value of evidence for the purposes of ss 97(1)(b), I am to assume the jury will accept the evidence and thus should not have regard to the credibility or reliability of the evidence: see IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [51]-[52], [54] and [58] and The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40 at [69].
7. There is no requirement for the evidence to be admissible as tendency evidence to exhibit an "underlying unity" or a "modus operandi" or a "pattern of conduct": see Hughes v The Queen (2017) 264 A Crim R 225; [2017] HCA 20 at [34], approving the approach in R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306; disapproving Velkaski v R (2014) 45 VR 680 at 682; [2014] VSCA 121.
8. The test posed is whether the disputed evidence, together with other evidence, makes significantly more likely any of the facts making up the elements of the offence charged: Hughes v The Queen at [40].
9. In making my assessment of whether the evidence has significant probative value in relation to the charge, I am required to consider two separate but interrelated matters. First, the extent to which the evidence supports the tendency, and second, the extent to which the tendency makes more likely the facts making up the charged offence.
10. The tendency does not have to be proved beyond reasonable doubt. In The Queen v Bauer [2018] HCA 40, the High Court stated that juries should not ordinarily be directed that they could not act on evidence of uncharged acts unless they were satisfied those acts were proved beyond reasonable doubt (at [86]). It is however apparent from The Queen v Bauer that the High Court envisaged a direction in terms may be necessary, if there is a significant possibility of a jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt (see [86]).
11. I am satisfied that the eight incidents set out above (noting in particular that in respect of five of them, no issue was raised as to their as admissibility as tendency evidence) comprise evidence which supports that the accused has the identified tendency, namely that whilst in an intimate domestic relationship a tendency to, when angry, be violent towards his partner by the use of physical force to the head.
12. As stated in Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 per Simpson J at [124]: Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion.
13. Contrary to the submission of senior counsel for the accused, I take the view that the incidents described possess significant probative value despite them being described as having occurred slightly over three years and in the case of the first incident in the notice, five to six years before the offence charged. I say that for the following reasons. I accept that the incidents in question described in the evidence proposed, involve an attacking to the head of the deceased and Ms Bingley when the accused had become suddenly angry at what appears to have been little or no provocation. There are common features that are similar and establish and support the tendency described in the Notice.
14. When this evidence is considered together with other evidence, including forensic evidence on the state of the deceased's head and face and the evidence of ambulance officers who attended the deceased on the night of her death, it makes more likely the facts that make up the elements of the offence charged.
15. Having determined the evidence is admissible under s 97, I must then ensure that s 101 is satisfied. Section 101 is concerned with balancing the probative value of the evidence against its prejudicial effect. In The Queen v Bauer [2018] HCA 40 at [73], the High Court described the expression "prejudicial effect" in s 101 (and "unfairly prejudicial" in s 135 and "unfair prejudice" in s 137) as conveying the idea of harm to an accused's interests by reason of a risk the jury would use the evidence improperly in some unfair way.
16. Section 101 provides as follows: 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
17. In Hughes v The Queen (2017) 264 A Crim R 225; [2017] HCA 20 at [17], the High Court identified how tendency evidence may occasion prejudice to an accused: "[17] In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years."
18. In determining the prejudicial effect that evidence may have on an accused, it is legitimate and appropriate for me to take into account the ameliorating effect of any directions that may reduce the potential prejudicial effect: Mol v R [2017] NSWCCA 76 at [36] and DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [171].
19. I am of the view that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the offender. I accept in full the Crown's submissions set out in paragraphs 30-34 of this judgment in those respects.
20. I reject the argument posed by senior counsel for the accused that because the incidents in issue occurred slightly over three years prior to the offence with which the accused is being tried, and five to six years before in respect of incident 1, they are somehow too remote in time and run the risk of distracting the jury from its necessary task. In my view, the incidents in issue are indeed part of a continuum of relevant, highly probative behaviours.
21. I reject the argument made on behalf of the accused that the discussion in [50] in The Queen v Bauer articulated a requirement that tendency evidence should not be considered to be admissible, if the events described in that evidence are "too far separated in point of time". I do not see that part of the High Court's judgment as in any way proscribing time limits around what can be considered to be sufficiently proximate in time to other tendency incidents or charges under consideration to qualify as admissible. I reject the submission that this part of the Court's judgment in Bauer supports in any way the argument that it is unfair for incidents more than 3 years prior to the offence charged to be admitted as tendency evidence or that they are too remote for consideration as tendency evidence. What could be considered to be "too far separated in point of time" was not specified in Bauer and in any case, arbitrary and false "time limits" should not be introduced, when the task in issue is to consider whether there is substantial probative value in the circumstances of the particular evidence under consideration, and weighing that against the potential prejudicial effect of it. Undoubtedly there will be cases where incidents sought to be relied upon occurring over 3 years and up to 6 years prior to the offence charged will fall outside what is substantially probative and/or creates an unacceptable prejudicial effect. This is not such a case.
22. I also have considered the discretionary and exclusionary provisions, s 135 and s 137 of the Evidence Act. Section 135 of the Evidence Act provides for a general discretion to exclude evidence; the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. Section 137 of the Evidence Act provides that in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. I am of the opinion the tendency evidence to be led is not unfairly prejudicial to the defence, nor is its probative value outweighed by the danger of unfair prejudice to the defendant.

Relationship evidence

1. Objection was taken on behalf of the accused to particular categories of relationship evidence that the Crown proposes to lead.
2. The areas in issue are described in the schedule to the Crown's written submissions as follows: (i) "The accused's relationships with other women", (ii) "Evidence of violent behaviour involved in threats to harm the deceased's family", (iii) "Control of finances", (iv) "Making the deceased drive him places", (v) "Telling the deceased to terminate her pregnancy".
3. The objections made are, in summary, that the areas in issue are too distant in time (more than three years before the alleged homicide) and/or comprise inadmissible hearsay, unfairly prejudicial material, inadmissible lay-opinion evidence or speculation.
4. It was argued generally that there is an unfair prejudicial effect associated with evidence that is distant in time from the alleged offending which may distract and overwhelm the jury and cause them to be diverted from their central task.
5. Putting to one side questions of form, which can be dealt with by agreement between the parties, I am required to determine first whether the evidence in issue is relevant and second for what purpose it is to be tendered.
6. It is common ground that there are limitations upon the permissible adducing of such evidence. As stated in Norman v R [2012] NSWCCA 230 at [33]: "[33] ... Evidence "is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context": DJV per McClellan CJ at CL at [29]. Particularly because of its potentially prejudicial character, the precise basis upon which the evidence is relevant must be closely analysed…"
7. The Crown submitted that all of the matters in issue here have a compelling connection to circumstances that are central to the jury's understanding and evaluation of the more immediate circumstances leading up to the deceased's death.

(i) Accused's relationship with other women

1. Taking first the evidence in relation to (i) the accused's relationship with other women, the area of contention was reduced in oral argument to the reference by Ms Marfutenko in her statement to the fact that the accused had had a baby to another woman, that the baby was about 5 months old and he was no longer with that girl (placing the timing of this as late 2012, early 2013), and that he "made out that the other girl was nobody" and he never loved her. In the context of the statement, this is a reference to the period before the accused and the deceased resumed their relationship in 2013. This evidence was asserted to be distracting for the jury, and "stale" and vague.
2. In the statement of Ms Gray, there is reference to the accused "hitting on her" at Rhonda's 21st birthday party and that the deceased had told her that the accused had another girlfriend since he broke up with the deceased and that that other girl had had a baby with the accused.
3. The Crown argued that, subject to form, these matters are highly relevant because the accused, in his ERISP, indicated that an area which was the subject of ongoing argument and disagreement between him and the deceased was his relationships with other women and what can be termed to be "mutual infidelity" in the past, in the context of the on again off again relationship between the accused and the deceased, as shown in questions and answers 173-176: Q173: She was happy you guys hadn't had a fight? A: I think we had, we have arguments but it's always over, over silly shit and but yeah no like arguments or anything like that. Q174: What do you argue about? A: I don't know but she asks like, ask if I've been to bed, going to bed with other girls and that and - - - Q175: About what? A: Like if I've been with my ex or anything. Q176: Ah, yeah. A: Shit like that or and me like getting angry at her for, you know, like seeing other people while I was still with her and all that stuff.
4. It is also relevant to motive and intent. The animosity in the background between them is relevant to his perception referred to in the emails between them in July 2016, (to which no objection is taken), less than a month before her death, that she had cheated on him in the past.

(ii) Threats of harm to the deceased's family

1. The next matter in issue is (ii) evidence of violent behaviour involved in threats to harm the deceased's family. That consists of material in the statements of Darcel Baker, Noel Baker Snr, Ms Marfutenko and Ms Gray. In respect of this material, senior counsel for the accused argued that it is only tangentially relevant and/or is unfairly prejudicial. It comprises accounts the deceased gave to those persons about what the accused said to her.
2. The Crown submitted this material was highly relevant to the question of the domestic circumstances and why there seemed to be contrary evidence from friends of the deceased to the effect that she was going to leave the accused, but at the same time she stayed with him.
3. The evidence in the statement of Darcel Baker, the deceased's mother, was in the context of a conversation with the deceased in about April 2016 where she notes bruises on the deceased's arms and says, amongst other things, "You need to leave him", and the deceased's answer was, "I can't do that now mum, he's threatened to get you, Tamania, and burn grandpa's house down".
4. In the statement of Noel Baker Sr, paragraph 9 recounts a conversation he had with Darcel where he recalls Darcel saying that Edwin had threatened Rhonda that if she broke up with him, he would burn my house down, and he would hurt her sister and Darcel if Rhonda left him.
5. The material in Ms Marfutenko's statement was in the following form: "He used to threaten her that if she didn't give him money he would "fuck her up". He told her (Rhonda) that if she left him or told anyone what was going on that he would go after her family".
6. Ms Gray in her statement said: "And Etuini even threatened to burn down Rhonda's father's house. There was even an occasion where Etuini followed Rhonda's younger sister Tamania home one day".
7. In my view, subject to the evidence being able to be given in admissible form (and as agreed by counsel if it cannot, it cannot be adduced) the subject matter of threats by the accused to harm the deceased's family is one that is highly relevant to the circumstances and dynamic of that relationship, in particular in the period leading up to the death of the deceased. It satisfies the requirement of potentially explaining or resolving questions in the jury's mind, by placing particular events in their true context.

(iii) Control of finances

1. The third category of evidence relating to control of finances is referred to in a number of statements including Darcel Baker, Ms Marfutenko, Ms Minkara, Ms Gray, Ms Leota, Ms George and Ms Shearman. This evidence makes reference to the deceased stating that the accused would demand the deceased's paycheque as he was not working at the time and then would fritter it away, and if she wasn't able to pay the rent before this happened, there would be no money left.
2. The objection raised on behalf of the accused was that this type of activity within relationships is commonplace and does not relevantly touch on issues that could "go towards the proof of murder".
3. The Crown argued that in a circumstantial case, where the accused's defence is that "somebody else did it", this evidence is part of a picture to provide a realistic context within which the Crown case against the accused can be considered, as referred to by Kirby J in R v Hamoui (No 1) [2005] NSWSC 99, relying upon Heydon J in R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494: "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.""
4. I am of the view that the evidence is relevant, informs the circumstances of the dynamics of the relationship, and forms an important part of the picture that the Crown is entitled to present. Any prejudice can be dealt with by an appropriate direction.

(iv) The accused made the deceased drive him places

1. The fourth category comprises an account of the accused making the deceased drive him places. This evidence consists of things said to Ms Marfutenko by the deceased to the effect that she was sick of the accused making her drive him places. The Crown submitted that this is relevant to the issue of control exerted by the accused over the deceased. The objection taken on behalf of the accused was of the same nature as that taken to the control of the finances - that is that these kind of things occur in many relationships and that the fluctuations and peculiarities are legion, and it amounts to a category of evidence that offends the principle that the "totality of relationship" evidence does not inform proof of murder.
2. I am of the view that the evidence informs the dynamics and habits of the deceased and the accused's relationship in circumstances where in the hours before the death of the deceased, there had been a description of the accused being angry with the deceased for not collecting him in the car quickly enough from a particular location.

(v) The accused told her to terminate her pregnancy with him

1. The fifth category comprises accounts by the deceased to Ms Marfutenko and Ms Minkara that the accused had told the deceased to terminate her pregnancy with him. The submission made orally by senior counsel for the accused was that this is an emotive subject which has a tendency to distract the jury from their task and that it is hard to imagine a subject as distracting or emotive as this one.
2. I do not accept that submission. I consider the evidence to be relevant, particularly in the context of the accusation made by the accused to the deceased that she cheated on him (in email correspondence between them on 11 July 2016), only a few weeks before the death. In that correspondence, the accused said, amongst other things: "…typical weak slut and selfish way to think … skank that betrayed and fucked me over and so frustrated that the skank herself can't even treat him like a real man you low life scum … I have the right to say what I want and when I want and if you can't put up with that then I won't put up with what you did. Make your choice I'm tired of living for a whore"
3. In my view, evidence that informs the dynamics of the relationship and matters about which the deceased and the accused often argued is relevant. I reject the submission that the jury would be distracted by evidence that the accused told the deceased to terminate a pregnancy. It is an important aspect of context. Relationships that each of them had had with other people was a subject acknowledged by the accused in his ERISP (as set out in paragraph 67 of this judgment) as an issue about which they fought. The issue of him having had a baby with another woman in circumstances where there is evidence that he had requested the deceased to terminate her pregnancy is a relevant extension to this category of evidence.
4. For all these reasons, the relationship evidence in issue I have determined is admissible in the trial.
5. In reaching this conclusion, I have also considered whether any of the evidence in issue should, nevertheless, be rejected by the exercise of my discretion available in s 135 of the Evidence Act, or must be excluded pursuant to s 137. Section 135 provides me with a discretion to refuse to admit evidence if its probative value does not substantially outweigh the danger that the evidence might be unfairly prejudicial to a party or be misleading or confusing or cause or result in undue waste of time. Section 137 requires me to exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. None of the categories of relationship evidence should be excluded on any of these bases.
6. I am of the view that the probative value of each of the five areas of relationship evidence referred to above (subject of course to it being adduced in admissible form) substantially outweighs its capacity to unfairly prejudice the accused. In reaching this view, I acknowledge that some of the evidence may well be adverse to the accused's interests, but not unfairly so.

Addendum re McPhillamy v The Queen [2018] HCA 52

1. On Friday 8 November 2018, the High Court published this decision, allowing an appeal from the New South Wales Court of Criminal Appeal, dealing with the admission of certain tendency evidence. I have read this decision and am of the view that it does not affect or alter the principles I have applied in reaching the views I have regarding the Crown's application to adduce tendency evidence in these proceedings.
2. I will however entertain any application to re-agitate this issue in light of this decision, once counsel have had the opportunity to read the High Court's judgment, but given the progress of the trial, any such application would need to be made on an urgent basis.

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