CRIMINAL LAW – EVIDENCE – RELEVANCE – PARTICULAR CASES
– the defendant allegedly procured another person to
murder his ex-wife
– whether evidence of the quality of the relationship between the deceased
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – EVIDENCE – RELEVANCE – PARTICULAR CASES– the defendant allegedly procured another person tomurder his ex-wife– whether evidence of the quality of the relationship between the deceasedand the defendant, includingthe deceased’s fear of the defendant, isrelevant and admissibleEVIDENCE – ADMISSIBILITY AND RELEVANCY – HEARSAY –PARTICULAR CASES – the defendant objects to evidence ofwitnesses as towhat the deceased told them – whether the statutory exceptions to thehearsay rule found in s 93B of the Evidence Act 1977 (Qld) applyCRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OREXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – PARTICULARCASES –whether evidence should be excluded in the exercise of judicial discretionEvidence Act 1977 (Qld) s 93B, s 98, s 130Evidence Act 1995(NSW) s 65Evidence Act 1995 (Cth) s 65
Justices Act 1886
(Qld) s 111
R v Ambrosoli [2002] NSWCCA 386
(2002) 55 NSWLR 603, followed
R v
Anderson [2000] VSCA 16
(2000) 1 VR 1, followed
R v Clark [2001] NSWCCA 494
(2001) 123 A Crim R
506, cited
R v Frawley (1993) 69 A Crim R 208, cited
R v
Glattback [2004] QCA 356, cited
R v Gojanovic (No 2) [2002] VSC 118
(2002) 130 A
Crim R 179, cited
R v Olasiuk (1973) 6 SASR 255, cited
R v
Pfennig [1995] HCA 7
(1995) 182 CLR 461, cited
R v Raye [2003] QCA 98,
cited
R v Ritter Unreported, New South Wales Court of Criminal Appeal,
Gleeson CJ, Handley JA and Hulme J, 31 August 1995, cited
R v
Thomas [1970] VicRp 87
[1970] VR 674, followed
Williams v R [2000] FCA 1868
(2000) 119 A
Crim R 490, not followed
Wilson v R [1970] HCA 17
(1970) 123 CLR 334,
followed
Judgment (294 paragraphs)
[1]
CRIMINAL LAW - EVIDENCE - RELEVANCE - PARTICULAR CASES - the defendant allegedly procured another person to murder his ex-wife - whether evidence of the quality of the relationship between the deceased and the defendant, including the deceased's fear of the defendant, is relevant and admissible
[2]
EVIDENCE - ADMISSIBILITY AND RELEVANCY - HEARSAY - PARTICULAR CASES - the defendant objects to evidence of witnesses as to what the deceased told them - whether the statutory exceptions to the hearsay rule found in s 93B of the Evidence Act 1977 (Qld) apply
[3]
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - PARTICULAR CASES - whether evidence should be excluded in the exercise of judicial discretion
Director of Public Prosecutions (Queensland) for the respondent
[22]
[1] Wilson J: The defendant Jim Lester, who has been charged with the murder of his wife Ingrid Lester on 19 November 2002, has applied for rulings on the admissibility of certain categories of evidence.
[23]
[2] Mrs Lester was killed by one Kinsella who stabbed her and cut her throat. Kinsella pleaded guilty to her murder. The defendant is alleged to have procured Kinsella to murder her, and so to be himself liable for the murder pursuant to s 7(1)(d) of the Criminal Code.
[24]
[3] The deceased and the defendant separated in November 2001. She formed a relationship with Alasdair Morrison.
[25]
[4] On 13/14 December 2001 the defendant assaulted the deceased.
[26]
[5] On 14 December 2001 the deceased signed an application for a domestic violence order against the defendant, which was returnable on 20 December 2001.
[27]
[6] On Christmas Day 2001 the defendant attempted to murder Morrison. He was taken into custody.
[28]
[7] On 10 April 2002 their 15 year old son Troy was seriously injured in a motor bike accident. He remained in hospital until 18 April when his life support machine was turned off. While he was in hospital the deceased was taken from the prison to visit him on 16 April and again on 18 April when he was party to the decision to turn off the life support machine.
[29]
[8] The defendant was released on bail on condition that he live in Victoria.
[30]
[9] On 6 June 2002 the deceased swore an affidavit in matrimonial proceedings in the Federal Magistrates Court.
[31]
[10] On 18 June 2002 the deceased found three large black bags containing marijuana plants in her back yard in Hervey Bay. About three days later when she was at Morrison's residence in Brisbane police simultaneously raided that residence and the deceased's own residence after receiving information that 30 kg of cannabis had been taken there from Pialba; nothing was found.
[32]
[11] Committal proceedings against the defendant arising out of the incident on 13/14 December 2001 took place on 16 July 2002.
[33]
[12] On 16 November 2002, the defendant travelled from Victoria to Queensland in breach of his bail conditions. He was met by Kinsella just over the border in New South Wales. Kinsella drove him to Hervey Bay, then back through Brisbane to the border, where he had left his car.
[34]
[13] On 19 November 2002 Kinsella killed the deceased.
[35]
[14] The application filed by the defendant contains a schedule listing 26 categories of evidence sought to be excluded. The prosecutor and defence counsel agreed that evidence in certain categories would not be led - namely, that in categories 11, 12, 18, 19, 20, 25. There was further agreement about some passages in the material in the remaining categories. I will consider only those categories or passages of evidence which were identified as still being in issue at the pre-trial hearing.
[15] Much of the argument related to representations made by the deceased. There were two recurring questions - (i) whether they amounted to "relationship evidence", and (ii) if they did, whether they were admissible pursuant to s 93B of the Evidence Act 1977 (Qld). There was a further question whether the Court should exclude the evidence in the exercise of its discretion.
[38]
[16] It may be helpful to discuss some general principles before turning to the challenged evidence.
[39]
[17] Relevance is the keystone of admissibility. In Wilson v R[1] Barwick CJ said -
[40]
"It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn"
[41]
"Evidence of the relationship between the parties has been admitted, not simply because it describes the relationship of the parties but because particular acts or statements occurring within that relationship are relevant to the issues arising in the case."
[42]
For example, such evidence may tend to establish motive or to assist the choice between two explanations of an occurrence.
[43]
[18] There is a distinction between evidence tending to establish matters relevant to the relationship between parties (as in R v Wilson) and propensity or similar fact evidence (as in R v Pfennig).[3] If the evidence is relationship evidence relevant to a fact in issue, it is not necessary to satisfy the Pfennig test that it is of such probative force that it bears no reasonable explanation other than the defendant's guilt of the crime alleged: R v Ritter;[4] R v Anderson.[5] Further, the jury should be warned that they cannot use the evidence for the impermissible purpose of demonstrating a propensity on the part of the defendant to commit the crime. The purpose for which, or the basis on which, the evidence is tendered will play a significant part in the court's determination whether it should be admitted and the degree of cogency required to support its admission.[6]
[44]
[19] In the present case the prosecution wishes to lead evidence of the relationship between the deceased and the defendant in order to establish motive and that the killing was not just a frolic of Kinsella's own. The prosecution case is that the defendant's hatred of Morrison was purely derivative of his proprietorial anger about the deceased. He believed they had been in a relationship before he and the deceased separated. The assault on the deceased on 13/14 December 2001 and the attempted murder of Morrison on Christmas Day 2001 were related incidents against a background of previous domestic abuse.[7] Kinsella recounts the defendant telling him about the cuckolding and that all of his other troubles - the death of Troy, financial loss, associated resentment, Court hearings and charges - stemmed from that fundamental issue. In the prosecutor's submission the relationship evidence provides an objective basis for Kinsella's account of what the defendant told him, and it supports the proposition that the defendant held those beliefs with an intensity that was homicidal.[8]
[45]
[20] In principle, relationship evidence is admissible for this purpose. It then becomes necessary to consider the content of the evidence sought to be led and its form, and whether it should be excluded in the exercise in the Court's discretion.
[46]
[21] As to the form of the evidence, the prosecution relies heavily on s 93B of the Evidence Act 1977, which provides -
[47]
"93B Admissibility of representation in prescribed criminal proceedings if person who made it is unavailable
[48]
(1) This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact -
[49]
(a) made a representation about the asserted fact; and
[50]
(b) is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence.
[51]
(2) The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was -
[52]
(a) made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or
[53]
(b) made in circumstances making it highly probable the representation is reliable; or
[54]
(c) at the time it was made, against the interests of the person who made it.
[55]
(3) If evidence given by a person of a representation about a matter has been adduced by a party and has been admitted under subsection (2), the hearsay rule does not apply to the following evidence adduced by another party to the proceeding -
[56]
(a) evidence of the representation given by another person who saw, heard or otherwise perceived the representation;
[57]
(b) evidence of another representation about the matter given by a person who saw, heard or otherwise perceived the other representation.
[58]
(4) To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.
[59]
prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 32.
[60]
(a) an express or implied representation, whether oral or written; and
[61]
(b) a representation to be inferred from conduct; and
[62]
(c) a representation not intended by the person making it to be communicated to or seen by another person; and
[63]
(d) a representation that for any reason is not communicated."[9]
[64]
[22] This is a "prescribed criminal proceeding" as the charge is murder.[10] The prosecution relies on representations made by the deceased to various other persons. Thus the requirements of s 93B(1) are satisfied. The prosecution relies on s 93B(2) para (a) and/or para (b).
[65]
[23] Section 93B(2)(a) and (b) have analogues in s 65(2)(b) and (c) of the Evidence Act 1995 (NSW) and s 65(2)(b) and (c) of the Evidence Act 1995 (Cth). There are minor differences in wording not of present significance. There are conflicting authorities about what circumstances may be taken into account in assessing whether it is unlikely that the representation is a fabrication[11] and those that make it highly probable that the representation is reliable,[12] which were reviewed by the NSW Court of Criminal Appeal in R v Ambrosoli.[13] Mason P (with whom the other members of the Court agreed) made the following points[14] -
[66]
(a) The statutory test is not whether, in all the circumstances, there is a probability[15] or a high probability[16] of reliability, but whether the circumstances in which the representation "was ... made" determine that there is such a probability.
[67]
(b) Evidence tending only to prove the asserted fact may not be considered.
[68]
(c) Prior or later statements or conduct of the person making the previous representation may be considered to the extent that they touch upon the reliability of the circumstances of the making of the previous representation - but not if they do no more than tend to address the asserted fact or ultimate issue. By contrast in Williams v R[17] the Full Court of the Federal Court held that the Court may consider "other available evidence as to all the circumstances in which the statement was made" and "the consistency of what was said with other material in the Crown case."[18]
[69]
[24] With respect, I consider the NSW approach more consonant with the wording of the provisions, and that it ought to be followed.[19]
[70]
[25] In some cases the deceased made representations that someone else told her something. As I understood the prosecutor's submissions, he does not contend that
[71]
s 93B allows the admission of second hand hearsay. In other words, he relies on
[72]
s 93B merely to adduce evidence that the other person said this to the deceased, and not that what the other person said was true.[20]
[73]
[26] If evidence of the relationship between the deceased and the defendant is admissible to prove motive and that the killing was not just a frolic of Kinsella's own,[21] as I think it is, then evidence that the deceased was in fear of the defendant is admissible because it is evidence of an aspect of that relationship:[22] R v Clark;[23] R v Gojanovic (No 2).[24]
[74]
[27] There is then the question of the form of the evidence of fear: can a statement of fear be "a representation about [an] asserted fact" within s 93B of the Evidence Act? A person's state of mind is a matter of fact, and I can see no reason in principle why that person is not someone "with personal knowledge" of it, or why that person cannot make a representation about it.
[75]
[28] If the requirements of s 93B are satisfied, the Court can nevertheless exclude the evidence in the exercise of its discretion. There are two statutory sources of the discretion - Evidence Actss 98 and 130 which provide -
[76]
(1) The court may in its discretion reject any statement or representation notwithstanding that the requirements of this part are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.
[77]
(2) This section does not affect the admissibility of any evidence otherwise than by virtue of this part."
[78]
"130 Rejection of evidence in criminal proceedings
[79]
Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence."
[80]
as well as the common law discretion to exclude evidence where its prejudicial effect outweighs its probative value: R v Swaffield.[25]
[81]
[29] The deceased gave evidence in the committal proceedings in relation to the defendant's attempted murder of Morrison. By the time the attempted murder charge was tried, the deceased was dead, and the committal transcript was admitted at that trial pursuant to s 111 of the Justices Act 1886 (Qld). So far as relevant, that section provides -
[82]
(1) When a defendant has been committed by justices to be tried for any indictable offence, the deposition of any person taken before justices, or the transcription of the record of evidence given by any person before justices where the evidence is recorded under the Recording of Evidence Act 1962 and the transcription is certified to as correct in accordance with that Act, with respect to the transaction or set of circumstances out of which has arisen the charge on which the defendant has been committed to be tried may, if the conditions mentioned in subsection (3) are satisfied in the case of the deposition and if the conditions mentioned in subsection (3)(a) and (b) are satisfied in the case of the transcription, without further proof be read as evidence on the trial of that person, whether for the offence for which the person has been committed for trial or for any other offence for which an indictment shall be presented, arising out of the same transaction or set of circumstances as the offence for which the person has been committed for trial, and whether or not combined with other circumstances.
[83]
(3) The conditions mentioned in subsections (1) and (2) are the following -
[84]
(a) the deposition or the transcription of the record of evidence must be the deposition or the transcription of the record of evidence either of a witness whose attendance at the trial is not required by the accused person, in accordance with the provisions of the Criminal Law Amendment Act 1892, section 4 and which accused person has duly signed the statement in the manner provided by the said section 4 and the schedule to that Act, or of a witness who is proved at the trial by the oath of a credible witness to be dead or insane, or so ill as not to be able to travel, or to be kept out of the way by means of the procurement of the accused or on the accused's behalf;
[85]
(b) it must be proved at the trial, either by a certificate purporting to be signed by the justices before whom the deposition purports to have been taken or before whom the evidence or statement was given or made or by the clerk of the court or any person acting as such, or by the oath of a credible witness, that the deposition was taken or the evidence or statement was given or made in the presence of the accused unless the accused was excluded from the proceeding whereat such deposition was taken or such evidence or statement was given or made pursuant to the provisions of section 40 or, where the deposition, evidence or statement was taken, given or made in a case where and at a time when the accused was not required to be present in person, that the same was taken, given or made in the presence of the accused's lawyer and that the accused or the accused's lawyer had the full opportunity of cross-examining the witness;
[86]
(c) the deposition must purport to be signed by the justices before whom it purports to have been taken.
[87]
(4) However, the provisions of this section shall not have effect in any case in which it is proved that the deposition, or, where the proof required by subsection (3)(b) is given by means of a certificate, that the certificate was not in fact signed by the justices or clerk of the court or person acting as such by whom it purports to have been signed."
[88]
It does not provide a basis for the admission of the transcript in the murder trial, because the murder is an offence distinct from the attempted murder for which the defendant was then committed for trial.
[89]
[30] I will now turn to the contentious evidence.
[90]
(1) Expressions of belief by the deceased that the defendant would or might murder her or wanted her dead
[91]
(2) Expressions by the deceased to the effect that she was in fear of the defendant
[92]
[31] Counsel for the defendant objected to specific passages in the evidence of Klienhans, Annabel Evans, Catalano Browning, Jennifer Evans, Charalambous and Nielsen. I shall deal with each in turn.
[93]
(1) About 5 years ago Ingrid used to come around to my house in Victor Drive, Kawungan in the mornings and we would go to the markets together. I had been going through trouble with Mick with domestic violence then, and I suspected she was going through the same thing because of the way she was acting and talking. She also looked to me like she had been crying from time to time.
[94]
The objection was on two bases - that the evidence was too remote in time to be relationship evidence, and that it could not logically or reasonably give rise to the inference than the defendant would want to murder his wife. I uphold the objection. While there have been cases in which evidence of incidents 2 or 3 years before a killing have been admitted as relationship evidence relevant to issues in dispute,[26] I think that evidence of what occurred 5 years previously is too remote. But for that aspect, the witness could have given evidence of what she observed and what the deceased told him (as relevant to the pre-separation domestic violence) but not of the conclusion she drew.
[95]
(2) I asked her why she moved out and she told me that Jimmy would drag her around by the hair and would hit her. She said that Jimmy would pull out the fridges and the stove and look behind them and he would see dirt and abuse her for being a filthy housekeeper.
[96]
This is evidence of something the deceased said to the witness after separation - that is, after November 2001. By the time he spoke with Kinsella a year later, the defendant believed that the deceased's relationship with Morrison had started before rather than after separation. That belief is relevant to motive. But the prosecution case is that that is not why the marriage ended - and that evidence of domestic violence is relevant to establish why it in fact ended. Accepting that for present purposes, such evidence would not be admissible unless s 93B were satisfied. Subsection (2)(a) is not satisfied because there is no evidence of how soon after the incident/s occurred the representation was made. All that is known of the circumstances in which the representation was made is that it was in a telephone conversation between the deceased (presumably in Hervey Bay) and a friend in Melbourne post separation. Subsection (2)(b) is not satisfied, in that not enough is known of the circumstances in which it was made for the Court to be satisfied it is highly probable it is reliable. I uphold the objection.
[97]
(3) Ingrid would always say that she was scared of Jimmy. She told me that she knew that he had guns and that he had threatened to shoot her.
[98]
Neither s 93B(2)(a) nor s 93B(2)(b) has been satisfied. I uphold the objection.
[99]
(4) Ingrid told me that when Jimmy first arrived at the hospital she thought he was going to attack her. She said that hospital staff must have thought the same thing because they stood between them so that nothing could happen.
[100]
Troy, the son of the deceased and the defendant, died in April 2002 - that is, after the defendant's assault on the deceased on 13/14 December 2001 and after his attempted murder of Morrison on Christmas Day 2001. By that time the deceased and Morrison were together the object of the defendant's hatred and resentment. Evidence that the deceased was in fear of the defendant would be relevant to the motive alleged by the prosecution and to prove that the killing was not a frolic of Kinsella's own. On the other hand the deceased's speculation as to what the hospital staff must have thought is irrelevant. But s 93B(2)(a) is not satisfied, because there is no evidence when the representation was made. Nothing is known of the circumstances in which the representation was made. Even if it were made in a telephone conversation between the deceased and Ms Evans, that would not be enough for the Court to be satisfied it was made in circumstances making it highly probable it is reliable. Thus s 93B(2)(b) is not satisfied. I uphold the objection.
[101]
(5) Ingrid told me that Jimmy didn't pay one cent for his own son's funeral.
[102]
This has no probative value. I uphold the objection.
[103]
(6) Ingrid told me Jimmy wasn't impressed about it.
[104]
The witness said she moved back to Hervey Bay about six months before giving the statement; she must therefore have moved back in about May 2002. She and her four children stayed with the deceased for about 10 weeks. Although the other son of the deceased and the defendant, Shaun, normally resided with the deceased, he had gone to Melbourne for a holiday with the defendant. The deceased obtained a Court order for his return to her. This is the context in which the witness made the statement, "Ingrid told me Jimmy wasn't impressed about it." This is no more than a representation of the deceased's assessment of his reaction; it does not provide any particulars of how his reaction was manifested. It is not a representation within s 93B. I uphold the objection.
[105]
(7) Jimmy hadn't known that I was staying with Ingrid so he must of driven past the house and saw my car parked there. He would of known my car from seeing it the previous Christmas.
[106]
(8) Ingrid received a phone call from an old friend of hers and Jimmy's one day. This person told Ingrid that he had received three letters in the mail from Jimmy from when Jimmy was in jail. The letters were asking this person to kill Ingrid for a considerable amount of money. I don't know who this person was or where he lived, except that it wasn't in Hervey Bay. Ingrid told Detective Rob SMITH about this. Detective SMITH asked Ingrid to get the letters from the person, but he didn't end up sending them down because he said that he didn't want to get involved.
[107]
In so far as this is evidence that the deceased told the witness that the person who called her told her he had received letters and told her the content of the letters, it is a representation that he told her those things - but not a representation as to the truth of those things. If the evidence is that the deceased made this representation while the witness was staying with her, given when that was (within 10 weeks from May 2002) and given the context that the defendant was then on bail on the attempted murder charge, I think that s 93B(2)(b) is satisfied, with respect to the first three sentences of the passage. Accordingly I allow the evidence as evidence that the person told the deceased these things, but not as evidence that they were true.
[108]
The sentence beginning "I don't know ..." is speculation, and inadmissible.
[109]
I allow the evidence of the conversation/s between the deceased and Detective Smith as evidence that these things were said, but not as evidence of their truth.
[110]
The last clause beginning "but he didn't end up sending them ..." is a mix of second hand hearsay and speculation; I disallow it.
[111]
(9) About three or four months ago I was staying at Ingrid's house with my children and she was staying at her mother's house. Ingrid was staying there because she had a court case going with Jimmy and she was too frightened to stay at her own home.
[112]
If the evidence is that the deceased told the witness she was too frightened to stay at her own home, it is admissible relationship evidence, relevant to the motive alleged by the Crown and to proof that the killing was not a frolic of Kinsella's own. I think s 93B(2)(b) is satisfied, and would allow the evidence.
[113]
(10) About August this year I moved into my current house. Mick began ringing me up in about September to begin talking to our kids. I was talking to Mick one day and he told me that he was glad that I wasn't living at Ingrid's any more. I asked him why he said that and he told me that Jimmy had rung Mick's parents, Kerry and Beverley DUNN at Tin Can Bay asking for Micks' [sic] number. They didn't give Jimmy the number. Mick always had Jimmy's number so he told me that when he found out Jimmy was chasing him he rung Jimmy.
[114]
Mick told me that Jimmy wanted to know if Mick would do Ingrid in for him. Mick said to me that the only reason he would be asking him, would be because Jimmy was running out of people to do favours for him. Mick refused to do it. Mick said that he told Jimmy that if anything happened while I or the kids were up at Ingrid's house then Jimmy would have Mick to deal with.
[115]
Mick said that Jimmy wasn't too impressed that Mick turned him down. Mick said that Jimmy told him something like, "She's fucked with my family for the last time." Jimmy told Mick that he would be looked after if he did it for him.
[116]
I rang Ingrid and told her what Mick told me. Ingrid then told Detective Rob SMITH and Rob SMITH rang Mick and Mick denied Jimmy asked him to do it.
[117]
When I next spoke to Mick I asked him why he denied Jimmy asked him to do anything and he said that he didn't want to get involved.
[118]
Mick is the witness's ex-husband. The evidence is probably relevant relationship evidence, but it has not been shown that Mick is unavailable to give it himself. Section 93B has not been satisfied.
[119]
In so far as there is evidence of what the deceased told the witness about her conversation/s with Detective Smith, this could be no more than evidence that such conversation/s occurred, but not evidence of the truth of what was said.
[120]
(1) The break up was Ingrid's idea and Jim wasn't very happy about it. Jim did not want the marriage to end. Ingrid was not happy about Jim's lifestyle and the way he treated her. He kept making promises that he would clean his act up but he never did.
[121]
This is not in the form of a representation made by the deceased. Even if it were, it is really no more than a recitation of the views of the deceased. The circumstances in which any such representation was made are not known. Section 93B has not been satisfied. I uphold the objection.
[122]
(2) I remember in December 2001, Jim broke into Ingrid's house and tried to kidnap her. I know that she escaped and called the police and Jim was arrested.
[123]
If this is evidence of what the deceased told the witness, it is relevant relationship evidence. However unless either s 93B(2)(a) or s 93B(2)(b) is satisfied, the evidence is inadmissible. At present there is simply no evidence of the circumstances in which the representation was made. I uphold the objection.
[124]
(3) Jim also said that he would get her for what she had done.
[125]
This is the only evidence of a threat made by the deceased at the hospital. It is supported by the correctional officer Eaves to the extent he says the defendant blamed the deceased for Troy's death. It is relevant relationship evidence. Whether it is admissible turns on the circumstances in which the representation was made. At present there is no evidence of those circumstances. Applying the approach in Ambrosoli,[27] the absence of other evidence of the making of the threat is not relevant to the assessment of the reliability of the representation. I decline to rule on admissibility at this time.
[126]
(4) I remember being a[t] work a couple of months ago when Ingrid told me that Cindy [Klienhans] had just spoken to her and told her that Jim had contracted Cindy's ex husband [Mick Dunn] and asked if he would do a contract on Ingrid meaning to kill her.
[127]
This can be no more than evidence of what the deceased represented that Klienhans had told her - not evidence of the truth of what Klienhans told her. It goes to the deceased's fear of the defendant, and is relevant relationship evidence. I think s 93B(2)(a) is satisfied, and allow the evidence.
[128]
(5) During my friendship Ingrid told me lots of things. I remember she told me on several occasions that Jim wanted her dead and she knew that he would try and do it. I know it worried her that he felt that way.
[129]
The witness's friendship with the deceased spanned 5 years. Even if this could be classed as evidence of the deceased's fear of the defendant, the circumstances in which the representations were made are too vague to come within s 93B(2)(a) or s 93B(2)(b). I uphold the objection.
[130]
(6) I remember Ingrid telling me about an old friend that she knew from when they had the fruit run had contacted her and told her that Jim had written him a letter. The letter asked him if he would kill Ingrid for him. Ingrid never told me his name but I remember she was surprised that Jim had contacted this person as they had had a falling out some time ago and Ingrid could not understand why Jim had written the letter to him. This person promised to send her the letter to her mother's house but to my knowledge it never turned up.
[131]
This can be no more than evidence of what the deceased represented a friend told her - not evidence of the truth of what the friend told her. There is no evidence of the circumstances in which the representation was made. I uphold the objection.
[132]
(1) Ingrid also said she had spoken to two male friends of Jim's and hers. Ingrid did not tell me their names but said they had warned her of the fact that Jim wanted to knock her off. I took this to [mean] that it was to kill her. Ingrid said Jim would be mad enough to do that.
[133]
The first two sentences are representations of what the two men said to the deceased - not of the truth of what they said. They go to the deceased's fear of the defendant and are relevant relationship evidence. The third sentence is an irrelevant statement of the witness's opinion. The fourth sentence is a relevant representation of the defendant's fear. The representation was made in October 2002, when the deceased visited the witness's home. The deceased "looked stressed and she had lost weight." She spoke of problems she was having with Shaun. Section 93B(2)(b) is satisfied. I allow the evidence.
[134]
(2) I said have you told the constable that is looking after the case. Ingrid said she had told the police officer. Ingrid also said that Jim had offered her $50,000.00 to finalise every thing. Ingrid said she had refused and wanted half. Ingrid told Gayle Patricia BROWNING my girlfriend that Jim would kill her one day. This conversation took place while I was in the toilet.
[135]
The first four sentences are admissible, following the preceding ruling. The fifth sentence is inadmissible hearsay, and the sixth sentence thus irrelevant.
[136]
(1) Ingrid said it broke her heart to let Shaun go back but he was also [al]ways saying that he wanted to go back to his father. I asked Ingrid how she was and she said that she had two males visit to her house. They came separately and at different times. Ingrid said that Jim had sent them to knock her off. They said they had refused as they respected her and were warning her that Jim was going to knock her off. Ingrid did not say who they were. Ingrid did not use names. Ingrid seemed to know her life was in danger and wanted to protect every one around her. I believe that is why Ingrid would not move in with her boy friend, as they would be sitting ducks. Ingrid said something about one of the men being someone that Jim had worked with on the fruit and veg run a long time ago.
[137]
The first sentence is inadmissible as it is irrelevant. Sentences 2 - 8 and 10 are representations that two men had visited her house and told her that the deceased was going to "knock her off". They are not evidence that the defendant was in fact intending to do so. They are evidence of the deceased's fear, which is relevant relationship evidence. The ninth sentence is irrelevant opinion evidence. With respect to sentences 2 - 8 and 10, I am satisfied that
[138]
s 93B(2)(b) is satisfied, and overrule the objection.
[139]
(2) I said "Ingrid would he pay money to have you killed?"
[140]
This is direct, testimonial evidence. It is relevant to the deceased's fear. I overrule the objection.
[141]
(3) Ingrid said straight out "Yes, Jim doesn't not [sic] like to lose."
[142]
This is a representation of the deceased's fear. Section 93B(2)(b) is satisfied. I overrule the objection.
[143]
(4) Badge then told Ingrid to get out of the house before Jim did kill her.
[144]
This is admissible evidence of what was said. I overrule the objection.
[145]
(1) During work over the 5-week period, Ingrid told me of incidents relating to her ex husband, and that she feared for her life. Just about every day of that time we discussed some feature [of] what had happened and what was currently happening.
[146]
This relates to the 5 week period commencing 18 October 2002. Objection is taken to the clause "and that she feared for her life." The witness says she and the deceased developed a good working relationship and that almost every day they discussed some feature of what had happened and what was currently happening. This is evidence of the deceased's fear, which is relevant relationship evidence. Section 93B(2)(b) is satisfied. I overrule the objection.
[147]
(2) During the 5 weeks I knew Ingrid she never mentioned she was scared of any person other than her husband.
[148]
(1) Jim was acting over the top and I thought that he was going to lose the plot. Jim seemed very erratic.
[149]
This is an irrelevant lay assessment of the defendant's behaviour. I uphold the objection.
[150]
(2) Ingrid has become increasingly scared and stressed, constantly worrying that Jim was going to come after her or something would happen to her. A couple of weeks ago Ingrid and I were talking on the phone and Ingrid said that she had been seeing a counsellor and that was giving her strength. Ingrid had resigned herself to the fact that if Jim was going to get her he would and she couldn't give in to him. Ingrid wanted to get her life going again.
[151]
Objection is taken to the first and last sentences. I uphold the objections for the same reason as the preceding passage.
[152]
(1) She did however indicate that she was in fear of her husband and was happy that he was being held in custody.
[153]
The witness acted as the deceased's solicitor in relation to her matrimonial affairs between January 2002 and her death in November that year. She told the witness about the incidents involving herself and Morrison. The evidence to which objection has been taken is relevant evidence of the deceased's fear of the defendant. Section 93B(2)(b) is satisfied. I overrule the objection.
[154]
(2) Even though Jim Lester was in custody, Ingrid Lester told me that she did not feel entirely safe and that she feared that her husband might arrange for someone to harm her.
[155]
I overrule the objection for the same reason as the preceding passage.
[156]
(3) On 18 July 2002 Ingrid Lester told me that she had spoken with a family friend in Bundaberg who told her that he had received letters from Jim Lester whilst he was in jail. She told me that the letters contained comments about Jim Lester wanting to kill Ingrid Lester and Alisdair Morrison. I advised her to get copies of the letters and she indicated that she would do so. Later she told me that she had been unable to get the letters and that she felt the family friend would not provide the letters to her because he was scared of the repercussions. I do not have a record of the name of the family friend although I seem to recall that it was a male person who resided in Bundaberg. Now produced and shown to me and marked "TAN 1" is a true copy of a file note that I took on 18 July 2002 following a discussion with Ingrid Lester.
[157]
Objection is taken to the underlined passages. The first passage is evidence of what the family friend said to the deceased - not of the truth of what they said. It goes to the deceased's fear of the defendant and is relevant relationship evidence. Section 93B(2)(b) has been satisfied. I overrule the objection.
[158]
The second passage is merely supposition on the deceased's part. I uphold the objection.
[159]
(4) On 19 September 2002 I had a telephone conversation with Ingrid Lester. She told me that someone had told her that Jim Lester had put a "hit out on her". She did not tell me who had told her this information.
[160]
Objection is taken to the second sentence. This is evidence of the deceased's fear - but not evidence of the truth of what the person told her. Section 93B(2)(b) has been satisfied. I overrule the objection.
[161]
(5) Up until the date of her death Ingrid Lester remained in fear of her husband.
[162]
This is an irrelevant expression of the witness's opinion. I uphold the objection.
[163]
(6) Peter Pagliarino told me that Jim Lester was anxious not to sell the home and wished to keep the home for sentimental reasons.
[164]
This is inadmissible hearsay. I uphold the objection.
[165]
(3) The allegations that on or about the 13th day of December 2001 the defendant entered the dwelling of the deceased at night and unlawfully detained the deceased therein and at the same time unlawfully assaulted her
[166]
(4) A statement made to the police by the deceased and dated the 14th day of December 2001
[167]
(9) The deposition of the deceased's evidence in Magistrates Court proceedings number 8884 of 2001 at Hervey Bay in the State of Queensland, being evidence given on the 16th of July 2002
[168]
[32] The deceased made a statement to police on 14 December 2001. The defendant was charged with a number of offences arising out of the incident. Committal proceedings took place on 16 July 2002, when the deceased confirmed the contents of her statement and was cross-examined. Some inconsistencies emerged from the cross-examination.
[169]
[33] Oral argument focussed on the admissibility of the statement made on 14 December 2001 pursuant to s 93B(2)(a) of the Evidence Act. Although the statement was made shortly after the assault, defence counsel submitted that it was not made in circumstances making it unlikely the representations it contained were fabrications. He made a number of points including -
[170]
(a) that the transcript of the cross-examination at the committal is not admissible under s 111 of the Justices Act - which is correct;
[171]
(b) that there is inconsistency between the statement and that of the neighbour Woods, in particular in relation to whether the deceased said her hands had been bound with tape;
[172]
(c) that some matters in the statement did not appear in a handwritten document containing a number of points (as if an aide memoire) found in the deceased's boot after her death.[28]
[173]
The prosecutor made various points in reply, including -
[174]
(a) that if the statement were allowed into evidence, the prosecution would undertake to tender the transcript of the cross-examination or to make it available for the defence to tender (without saying on what basis - but presumably pursuant to s 93B(2)(b));
[175]
(b) that the statement was made under oath, making it more likely it was reliable;
[176]
(c) that there is circumstantial support for the representations in the evidence of Woods, Carloss and Smith;
[177]
(d) that the inconsistencies do not relate to the "big ticket items", but were the "usual inconsistencies", "the sorts of things that crop up in every case where you have a distressed person trying to remember events".[29]
[178]
[34] The trial of the defendant on the charges arising out of that incident did not take place until November 2003 (a year after the deceased's death). The prosecution sought to tender the transcript of her cross-examination at the committal in reliance on s 111 of the Justices Act. The defence successfully applied to have it excluded in the exercise of the Court's discretion. Judge Botting excluded it in the exercise of the fairness discretion. His Honour was particularly concerned at the inability to cross-examine the deceased and the jury's being deprived of the opportunity to observe her demeanour.
[179]
[35] I have already referred to the divergence of judicial opinion on what the Court may take into account in determining whether a representation was made in circumstances making it unlikely it is a fabrication.[30] Defence counsel's submissions on s 93B(2)(a) were apparently premised on a wide view that the Court can look at the consistency of the representation with other evidence to determine its reliability. As I have already said, I do not think that is the correct approach. But even if it is, I think there is force in the prosecutor's submissions about the nature of the inconsistencies here and the support found in the evidence of the other witnesses. That the deceased reaffirmed the contents of the statement at the commencement of her evidence at the committal may also bring it within s 93B(2)(b), although this point was not argued.
[180]
[36] I am not prepared to exclude the statement in the exercise of the Court's discretion. The deceased was the only person other than the defendant present when the assault took place. I agree with the prosecutor that it would be wrong to exclude it on the basis that she is not available of cross-examination when her unavailability is the very statutory basis on which it might be admitted. In the circumstances any disadvantage to the defendant is adequately answered by the prosecution's undertaking to tender the transcript of the cross-examination.
[181]
(5) The fact and detail of a domestic violence order obtained by the deceased against the defendant in about December 2001, bearing Domestic Index number 01/23878
[182]
[38] The deceased applied for such an order on 14 December 2001. The return date of the application was 20 December 2001. It supports the deceased's representations about the incident the night before, and supports the prosecution case as to the real reason for the marriage breakdown. I overrule the objection.
[183]
(6) The fact that and the circumstances in which the defendant attempted to murder Alisdair Morrison
[184]
[39] The prosecution does not seek to lead evidence of the defendant's conviction for attempted murder, but of the factual allegations on which it was based, including evidence of Morrison, other witnesses to the incident and a statement of the deceased made on 28 December 2001. The defence concedes that if the evidence is otherwise admissible the requirements of s 93B of the Evidence Act have been satisfied for the deceased's statement.
[185]
[40] Counsel for the defendant submitted that the evidence says nothing about the relationship between the defendant and the deceased and nothing relevant to motive. He referred to R v Olasiuk[31] where the South Australian Full Court said -
[186]
"Evidence of threats by a person accused of murder against the deceased is admissible, if sufficiently proximate in time, to prove motive and to show the relationship between the parties, and, indeed, to prove the act of killing. Evidence of threats to some other person entirely unconnected with the crime proves, of course, no more than a propensity to violence and is clearly inadmissible."[32]
[187]
He submits that it shows a propensity to violence, and as such it is highly prejudicial.
[188]
[41] This is an overly simplistic view of the prosecution case - which is that the defendant's anger and resentment were directed at both the deceased and Morrison, that those feelings arose out of the break down of the marriage and the defendant's belief that the deceased and Morrison had begun their relationship before the separation. This is what the defendant told Kinsella in November 2002. The prosecutor observed that it was in the course of the incident on Christmas Day that the defendant's first expressed his belief that he had been cuckolded. He submitted that the evidence is relevant to the level of his hostility: on Christmas Day, even before the further aggravating fact of the death of Troy, the defendant's hostility was so intense that he wished to kill.
[189]
[42] In my view the evidence is admissible for the reason advanced by the prosecutor. It may be necessary for the trial judge to instruct the jury on the use to which they may put it - but that does not bear on its admissibility. I overrule the objection.
[190]
(7) Deceased's statement to police dated 9 July 2002, together with addendum dated 6 August 2002 and paragraph 11 of statement of Morrison to police on 20 November 2002 (the marijuana incidents)
[191]
[43] On 18 June 2002 the deceased arrived at her home in Hervey Bay to find three black garbage bags containing marijuana in the back yard. On 21 June 2002 she went to Morrison's home in Brisbane. About midnight the following night police raided those premises and the deceased's home in Hervey Bay looking for 30 kg of drugs allegedly transported from Pialba; nothing was found. The defendant was required to present at committal proceedings at Hervey Bay on 26 June 2002, at which the deceased and Morrison were to give evidence.[33]
[192]
[44] At the end of her statement the deceased said -
[193]
"I believe that Jim [the defendant] is behind this harassment as he is the only person who stands to gain anything from it.
[194]
I am frightened for my life. Jim still has friends in Hervey Bay and while every [sic] he is on bail he will be able to continue this harassment."
[195]
[45] The defence objected to these three sentences as an expression of the deceased's opinion. Defence counsel submitted that without these sentences there is nothing to link the harassment to the defendant.
[196]
[46] The prosecutor submitted that the timing is significant - so close to the committal proceedings. Further, he submitted that it is significant that both the deceased and Morrison were targeted - one resident in Hervey Bay and the other in Brisbane. Also there is reference to drugs in Kinsella's statement, albeit in a different context. He submitted that it may reasonably be inferred that the deceased was the only person with a sufficient interest to engage in this harassment.
[197]
[47] I uphold the objection to the last three sentences of the deceased's statement. Otherwise, I accept the submissions of the prosecutor, and overrule the objection.
[198]
(8) The totality of the relationship evidence concerning the defendant's supposed behaviour towards the deceased on the occasion of his visit to his severely injured son Troy at Royal Brisbane Hospital in April 2002
[199]
[48] The defendant visited his son in hospital twice - on 16 and 18 April 2002. On the first occasion he was accompanied by Adele Juffs, a correctional officer, and on the second occasion he was accompanied by Craig Eaves, a correctional officer. It was on the second occasion that the decision to withdraw life support was made. On the second occasion the deceased was present, and the defendant blamed her for Troy's death. On the second occasion a counsellor Melanie Kaplun was also present.
[200]
[49] Evidence that the defendant blamed the deceased for Troy's death is relevant to motive, and so admissible. It is picked up in Kinsella's statement.
[201]
[50] The defence objects to evidence that the defendant was handcuffed as unduly prejudicial. However, it is part of the narrative, and I refuse to exclude it.
[202]
[51] I have already dealt with the evidence of Annabel Evans and Klienhans in relation to this incident.[34]
[203]
(10) All affidavit material sworn by the deceased in Family Court [sic] proceedings ZB5315/02, Brisbane Registry and the Affidavit of Francis Parker sworn the 9th of October 2002 and filed in those proceedings
[204]
[52] There were proceedings in the Federal Magistrates Court in relation to interim custody of and access to Shaun. They seem to have been commenced in June 2002. There is a large bundle of material used in those proceedings, which counsel discussed during an adjournment. As a result, they reached agreement with respect to many passages. However, some remain contentious.
[205]
(1) During the course of the marriage Jim was verbally abusive towards me and the oldest son Troy. I made an application for a Domestic Violence Order and a true copy is attached hereto and marked "IL1". This records some of the domestic violence during the marriage. During the marriage Jim was always verbally abusive towards me and threatened physical violence on a regular basis. The children witnessed this often. On one occasion in the presence of our oldest son, Jim dragged me by my hair from our lounge room out into the front yard.
[206]
The marriage lasted from 17 August 1985 to October/November 2001. Domestic violence is relevant to the cause of the marriage breakdown. But this evidence is not precise as to when the domestic violence occurred - except (by reference to the DVO application) that there was violence on 14 December 2001. I uphold the objection.
[207]
(2) For reasons already given, I disallow the material under "13. History of Domestic Violence" in the DVO application itself.
[208]
(3) In October 2001 the marriage had broken down irretrievably. I was experiencing extreme domestic violence and so was our older son Troy. In mid to late October, 2001 Jim told me that his mother was sick and that he was going to Melbourne to be with her. After he left I sat down with both Shaun and Troy and told them that their Father and I were not getting along very well and that at some stage it was likely that I would leave the home. At that time Troy told me that he thought that it was a good idea and asked me "Why don't we go now?" He also spoke of the domestic violence he had experienced and was very eager to leave. Shaun did not really say anything because he was probably too young to understand.
[209]
I disallow the sentence "I was experiencing extreme domestic violence". I doubt that it can be fitted into the Crown case on motive. In any event it is extravagant and prejudicial.
[210]
Evidence of domestic violence targeted at the deceased is relevant to the cause of the marriage breakdown. In principle evidence of violence perpetrated on Troy is also relevant. But this evidence of such violence is vague and I think, unduly prejudicial. The deceased's recounting of Troy's response to her proposing to leave is second hand hearsay not admissible as to the truth of what he said. I think it is unduly prejudicial. The last sentence adds little. I uphold the objection insofar as it relates to the underlined passages.
[211]
(13) Indirect and hearsay evidence to the effect that the defendant attempted to solicit a person or persons other than Michael Kinsella to murder the deceased
[212]
[53] The admissibility of this evidence was deferred because Bartlett was not available for cross-examination.
[213]
(14) The relationship evidence contained in paragraphs 3, 4, 5, 6 and 8 of a statement of Alisdair Morrison dated the 20th of November 2002
[214]
(15) The non-expert opinion contained in the statement of Alisdair Morrison dated the 20th of November 2003
[215]
[54] Paragraphs 3 and 4 of the statement relate to an incident on Fraser Island at some indeterminate time after late 1998. They are evidence of verbal abuses. On balance I think this evidence is too remote in time and unduly prejudicial to be allowed as relationship evidence. I uphold the objection.
[216]
[55] Paragraphs 5 and 6 relate to the period September/October 2001 - about the time of the separation. Counsel reached agreement about an objectionable passage in paragraph 5.
[217]
In October 2001 Ingrid told Jim that she was leaving and Jim was fine with it at first, but by the time that she had found a rental property to move into he was starting to get into a depressed sort of state and was acting in a paranoid manner. He would ring my home and speak to my flatmate Steve and ask what was going on. Ingrid and I were not intimate at that stage and there was nothing to talk about.
[218]
Objection was taken to everything after the words "... that she was leaving". It is a mix of hearsay and irrelevant opinion. I allow only the last sentence, and that only up to and including the words "at that stage".
[219]
In early December 2001 Ingrid and I became intimate. A short time later Jim broke into Ingrid's house at 12 Baird Drive, Pialba. Ingrid thought he might have hidden in the house when she went out. When she returned, he tried to sticky tape her mouth shut and handcuff her, she managed to escape and ran [to] a neighbour[']s home. The next day Jim was arrested and Ingrid applied for a Domestic Violence Order. The order was approved for two years whereby Jim was not allowed to approach any closer than 200 metres or contact other people to contact her.
[220]
Apart from the first sentence (which I allow), this is clearly based on hearsay. Even if it is based on representations by the deceased there is no evidence as to the circumstances in which such representations were made to allow an assessment of the reliability of the representations. Section 93B of the Evidence Act has not been satisfied. I uphold the objection.
[221]
(3) In an addendum to his statement Morrison said -
[222]
[Ingrid] also told me about the fact that her mother wanted her to get out of the house and Ingrid told me that she was going to stay there until the end of the week. She told me that as of Monday night coming she was going to be sleeping at her mother[']s during the nights. She was going to go back to the house during the day to clean up and things like that.
[223]
She told me that she was going to sleep at her mother[']s until the settlement date, which was the 14th or 15th of December.
[224]
This is a mix of second hand hearsay and representations of future intention. I uphold the objection.
[225]
(4) I have already ruled out the statement of opinion in paragraph 6 of Morrison's statement.
[226]
(16) The relationship evidence and the expressions of opinion, supposition and speculation concerning the defendant's relationship with the deceased contained in the statement of Cindy Elizabeth Klienhans dated the 20th of November 2002
[227]
(17) The whole of a statement made to police by Ligita Stenbergs dated the 21st of November 2002, save for the concluding three paragraphs on page 4 thereof.
[228]
[57] Stenbergs is the mother of the deceased. Counsel reached agreement about various passages in her statement. The following passages remained in contention
[229]
(1) Ingrid did complain on one occasion that Jim had dragged her around the house by the hair. Over the years Jim would physical [sic] abuse Ingrid by punching her.
[230]
While evidence of domestic violence is in principle admissible, I uphold the objection to this material. The circumstances in which the deceased made the representation in the first sentence are not described. The second sentence, even if based on representations by the deceased, is so general as to be of little probative value, while highly prejudicial.
[231]
(2) Ingrid told me that Jim had broken into her house and attacked her. Ingrid was frightened of Jim as he would come and knock on the door to frighten her.
[232]
In the absence of evidence of the circumstances in which the deceased said this, s 93B is not satisfied. I uphold the objection.
[233]
(3) After the incident at Woodgate at Christmas time when Jim attacked Alisdair Ingrid became more frightened of Jim. Ingrid was terrified of Jim.
[234]
This is Stenbergs' assessment of the deceased's state of mind; it is irrelevant opinion evidence, which I disallow.
[235]
(21) The opinion evidence of Raymond Challender to the effect that the defendant meant to kill the deceased contained in paragraph 9 of his statement dated the 15th of July 2005 and his statement concerning a telephone conversation with me after the death of the deceased, referred to in paragraph 3 of his statement of the 2nd of February 2006
[236]
[58] Challender was a friend of the deceased and the defendant. After the marriage break down the defendant often asked Challender to check on the deceased. Although Challender said he would do so, he had no intention of doing so, and never did.
[237]
[59] In paragraph 9 of his statement dated 15 July 2005 Challender said -
[238]
About 3-4 months prior to Ingrid's death I moved to Kingaroy. Just prior to moving to Kingaroy, I had my last call from Jim. I was at my sister's house at Howard when I received the call. Jim rang me about Ingrid again only this time he said, "Don't go and see her anymore, stay away, It's all sorted". Having known Jim for so long I knew what he meant when he said, "It's all sorted". When Jim said, "It's all sorted" I took that to mean he had arranged for somebody to take Ingrid out. By that I mean kill her. I said to Jim, "Don't do it". I don't think Jim replied when I said, "don't do it".
[239]
I disallow from "having known Jim for so long..." to "... kill her". It is Challender's interpretation of what the deceased said, and as such irrelevant opinion evidence.
[240]
[60] In his statement made on 2 February 2006 Challender said -
[241]
When Jim LESTER called me approximately 2 weeks after Ingrid[']s death, I confronted him over what had happened. I kept asking Jim, "Did you do it", referring to her murder. Jim refused to answer my questions and just kept changing the subject. The only thing Jim eventually said to me was, "Don't say anything to anybody, it's none of your business". When Jim said don't say anything to anybody, he said it in such a way that I took it to be a threat.
[242]
Challender was cross-examined about this. It became apparent that in his lexicon "to confront" someone meant simply to have an exchange with someone in front of him - eg his wife across the breakfast table, or the woman behind the counter in the newsagency.
[243]
[61] The defence submitted that this could not amount to an admission against interest, and that even if it could, the circumstances in which it came to be recorded would make the adducing of it unfair.[35]
[244]
[62] In cross-examination Challender said that the first time the defendant was asked about the deceased's death he responded "It's none of your business." The next time the defendant effectively moved on to another topic of conversation. According to the statement Challender "kept asking" the defendant "Did you do it?" If indeed he asked more than twice, the defendant's subsequent responses have not been recounted.
[245]
[63] Whether this evidence is admissible turns on whether it is capable of being construed as an admission against interest. In R v Thomas[36] the Victorian Full Court reviewed the relevant authorities. The Court said -
[246]
"A statement made by another in the presence and within the hearing of the accused is hearsay and it can only be used as evidence against him if he has done something in the way of utterance, silence or conduct which in the particular circumstances justifies an inference that he has acknowledged the truth of the statement so as to make it his own, or has so conducted himself as to show a consciousness of guilt.
[247]
However, once there is evidence from which it may be properly inferred that the accused adopted the statement by express affirmation, silence or other conduct, it is for the jury to say whether such is the proper inference, and the judge's function is solely to rule whether the evidence is such that the inference can properly be drawn."[37]
[248]
[64] Here the defendant refused to respond directly to Challender's question. It was akin to silence in circumstances where one could reasonably expect a response. It could, in my opinion, be reasonably construed as an admission. Whether it is to be so construed is a question for the jury. I allow the evidence.
[249]
(22) All hearsay and opinion evidence contained in the statement of Paul Birchall-Hunt dated the 21st of November 2002
[250]
[65] Birchall-Hunt had known the deceased and the defendant for about 10 years. He says that after the separation he provided moral support to the deceased. The following passages were objected to -
[251]
(1) It was through this that I found out what had been going on between Ingrid and Jim.
[252]
This links the witness's statement that he had provided moral support to the deceased with the next paragraph in which he purports to summarise things she told him. In this sense it is evidence of the circumstances in which the deceased told him things. However the expression "what had been going on between Ingrid and Jim" is emotive and prejudicial. I do not think it adds anything to the preceding statement that he provided moral support to the deceased after the separation in terms of setting the context. I disallow the sentence to which objection has been taken.
[253]
(2) Ingrid was unhappy about Jim[']s lifestyle and the way he treated her. Ingrid told me that Jim had [been] violent towards her. Ingrid would not tell me any detail just that Jim had been violent to her on various occasions.
[254]
I disallow the first sentence: it is the witness's interpretation of what the deceased said. I allow the other two sentences as relevant to why the marriage broke down.
[255]
(3) Ingrid told me that Jim would tell her fairly regularly that he would get her.
[256]
This is a representation of threats by the defendant and of the deceased's fear. It is relevant to the motive alleged by the prosecution. I allow the evidence.
[257]
(23) All evidence of telephone conversations between the defendant and various persons whilst he was in custody on remand at Woodford Correctional Centre between 25 December 2001 and 26 April 2002.
[258]
[66] While he was in prison before his release on bail the defendant had a number of telephone conversations with Kalisperis ("Dave"), Kalisperis's wife ("Mandy") and Challender ("Johnny"). The defence conceded that these are admissible but asked the court to exclude them on the basis of undue prejudice.[38] When asked to identify the prejudice defence counsel replied -
[259]
"Primarily it's the prejudice of the jury understanding that these are conversations being listened to in a prison environment where my client is under surveillance."[39]
[260]
He conceded that the trial could not realistically be conducted without the jury knowing that the defendant had been in prison at some stage and subsequently on bail. The jury would not know why he had been in prison and would be told not to speculate. He then laid emphasis on the covert recording of the conversations. But there was a recorded announcement to that effect at the commencement of each conversation, and such recording is standard practice. As I observed in argument, I cannot see that anything is added to the disclosure that he was in jail by the fact of the conversations being recorded.
[261]
[67] In the course of the conversations the defendant expressed his belief that the affair between the deceased and Morrison began before the separation; he spoke of his concerns and objectives in the property proceedings under the Family Law Act, of his worries about his sons including what he saw as the deceased's bad influence on them and her mistreatment of Troy, of his anguish after Troy's accident, and of his intention to apply for bail. Some of the language used was crude. He wanted his friends to intercede with the deceased (on one interpretation, to facilitate a reconciliation, on another interpretation, to assist him to achieve a more favourable outcome in the matrimonial proceedings). It is a matter for the jury to assess his use of language, and whether it had sinister connotations.
[262]
[68] I am unpersuaded that there is substantial prejudice of the kind contended for, or that if there is, it outweighs the probative value of the evidence. I overrule the objection.
[263]
(24) All evidence of letters written by the defendant to any person whilst he was in custody on remand at Woodford Correctional Centre between 25 December 2001 and 26 April 2002
[264]
[69] No submissions were made in relation to this.
[265]
(26) The evidence of Alan Geoffrey Piper is inadmissible and unqualified expert opinion evidence.
[266]
[71] I formally make rulings in accordance with those contained in these reasons.
[19] See generally the discussion in Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [8.52]-[8.58]; Butterworths, Cross on Evidence Australian Edition, vol 1 (at service 101) [35480]-[35510].
[21] In R v Frawley(1993) 69 A Crim R 208 evidence of fear was held inadmissible because it did not tend to prove that the defendant killed the deceased, or that he acted towards her with a certain intent. See p 223. Here the evidence is relevant to other matters.
[33] Transcript of the hearing, pp 227, 232. It was not clear on which charge or charges the committal was to proceed; the prosecutor took the date from an affidavit filed in the family law proceedings.