R v Niguidula

A brief overview of the Crown case

1. It is necessary to set out, at least in brief terms, the case against the accused. The Crown Case Statement, which was included in the material tendered on the voir dire, sets out the following (I note I have not included the photographs incorporated into these paragraphs): [1] [1] The accused, Jenny Niguidula (DOB 03/09/1976) had been in a long-term relationship with the deceased, Rhonie Apostol (DOB 29/10/1966). In the days leading up to his death, the accused discovered that Mr Apostol had a sexual relationship with another woman, Divina Eugenio, in the Philippines. [2] The allegation is that, on or about 17 November 2019, Jenny Niguidula, using a kitchen knife, stabbed Rhonie Apostol through the heart, causing his death. The allegation is that the accused did so with the intention to kill Rhonie Apostol, or with the intention to inflict grievous bodily harm. Background [3] Rhonie Apostol was the son of Flavia Apostol and the late Rhonie M Apostol. He had three siblings, Christina Apostol (nickname Apple), Corazon Apostol (nickname Coy) and Paul Apostol. They all grew up in the Philippines. [4] In 1993, Rhonie Apostol married a woman named Geraldine Olivares-Apostol. They migrated to the United States and settled in New York. In 1994, they had a son together. The deceased's siblings later moved to the United States as well. [5] In 2010, Geraldine's brother Jonathan Olivares married the accused, Jenny Niguidula. Jonathan Olivares worked for the accused in her company 'Kaleidoscope International'. The company conducted market research by collecting used cigarette packaging. [6] In 2011, Rhonie Apostol started working for the company. As part of his role, he would often travel internationally with the accused, including to Australia. [7] In 2012, Jonathan Olivares and the accused divorced. Jonathan later told the deceased's sister, Coy Apostol, that the accused was violent towards him during their marriage. She would punch him and scratch him. He told Geraldine Olivares that she once threw a lamp at him. Around the time of the divorce, Jonathan Olivares left the company. [8] By 2013, Geraldine Olivares-Apostol suspected there was something going on between the accused and the deceased. This suspicion was based on the accused and the deceased holidaying together, social media posts, and the accused appearing overly friendly towards the deceased. Geraldine Olivares-Apostol also saw a text message from the accused to the deceased, where the accused referred to the deceased as "Bunny". [9] Rhonie Apostol also borrowed money from the accused. He borrowed $16,000 to pay off a credit card debt, he borrowed $65,000 to pay for his son's tuition fees at Berkley College and also borrowed money for travel when his father passed away. Geraldine Olivares-Apostol felt that the accused used this debt against Rhonie Apostol; to make him go on more work trips with her, and by demanding the remainder of the debt when she was upset. [10] The accused was also in a sexual relationship with a man named Jan Lei Saret. Mr Saret was in his 20's and lived in the accused's Long Island residence with his wife. [11] When the accused was in Sydney for business, she would live in a granny flat at the rear of a property at 38 Alto Street, South Wentworthville. The property and granny flat were owned by Amorlinda Hepper. Sunday 10 November 2019 [12] On Sunday 10 November 2019, the accused and the deceased arrived at Sydney International Airport on board flight 5J49 from Manila, Philippines. Both the accused and the deceased declared on their incoming passenger card that they would live at 38 Alto Street, South Wentworthville. [13] During the flight, the accused became aware that the deceased was involved in a sexual relationship with Divina Eugenio. At the time Divina Eugenio lived in the Philippines and assisted with the care of the deceased's elderly mother. [14] Upon arrival in Sydney, at about 10.22am, the accused was captured on CCTV footage walking away from the deceased: [15] The accused immediately entered the female toilets, where she remained for the next three hours. She later told police in her record of interview that she was crying. [16] Meanwhile, the deceased had gone through Customs and collected their luggage. He did not know where the accused was. He is captured on footage waiting for the accused and trying to look for her. [17] The accused eventually left the toilets at about 1.34pm. She went through Customs at about 1.38pm: [18] The accused walked around the arrival area for another hour, before meeting the deceased outside the airport. They are seen speaking for about 3.5 hours near the smoking section. [19] At 6.11pm, the accused was captured punching the deceased to the face, before walking away from him. [20] At 6.12pm, the deceased is captured trying to pull the accused by her right hand. [21] The accused turned around and threw her phone at the deceased's head. The deceased blocked the accused's left arm. [22] The accused is seen walking away. The deceased goes after her momentarily, before returning to his trolley containing their luggage. [23] At 10.34pm, Uber records confirm the accused requested an Uber from an 'Unnamed Road' in Mascot. The Uber driver arrived at the location at 10.39pm. The Uber driver drove the accused and the deceased to Wentworthville, dropping them near 38 Alto Street at 11.13pm. [24] Amorlinda Hepper remembers the deceased and the accused arrived at her residence at night time. The accused told Ms Hepper she had a migraine and went straight into the granny flat. [25] The deceased called his sister Coy on 10 November 2019. He told Coy that the accused had found out he had a girlfriend in the Philippines and demanded to know everything. She was furious and wanted to 'destroy' Divina Eugenio. They were fighting and she threatened to tell his wife Geraldine about the relationship.
2. The Crown Case Statement continues, describing the events of Monday 11 November 2019. On that date, Ms Hepper took the accused and the deceased to Stockland Merrylands to buy groceries. They attended the pharmacist, where the accused sought advice on how to treat the cut to the deceased's forehead. The accused told Ms Hepper that the deceased had sustained a cut when he was trying to put up a fan and it fell on his head. The Crown case is that the injury was occasioned when the accused struck the deceased to the head with a LED lamp. This is the conduct relied upon with respect to count 1 on the indictment.
3. On the same day, 11 November 2019, the accused called the deceased's wife, Geraldine Olivares-Apostol, and told her the deceased was having a relationship with another woman. The Crown Case Statement records that Geraldine did not believe this and brushed it off.
4. On 13 November 2019, the deceased spoke to his sister, Coy Apostol and told her that the accused was enraged and had hit him with a LED lamp resulting in a cut to his forehead, and that he had also sustained cuts to his wrist from a previous assault by the accused with a knife. He sent a number of photographs to Coy showing the injury to his forehead, what appear to be cut marks to his chest, and cuts to the back of his wrist. He said he was sending them so that if "anything happens, someone knows". The deceased said he was fearful of what the accused would do if he left. A LED lamp was later recovered from the scene with blood-like staining on the head and base, with blood swabs taken from the lamp containing DNA consistent with that of the deceased.
5. Also on 13 November 2019, the accused again rang Geraldine and told her that the deceased was having an affair with a woman named "Vina". Geraldine said she preferred to raise the matter with the deceased in person when he returned home. A few minutes later, Geraldine received a call from the deceased who asked if the accused called. She falsely denied that she had. Geraldine said she could hear the accused in the background saying, "Coy knows about it and she is very angry". Shortly after this, the deceased called Geraldine and confessed his relationship with Vina. He told her he wanted to quit his job and come home.
6. On 14 November 2019, the deceased spoke to Coy and told her that the accused is calm one minute and the next minute "rage". The deceased spoke to Coy again the next day. She told him to leave, and that the accused would not stop hurting him until she killed him. The deceased said he could not leave. The next day, the deceased and the accused spent time with Ms Hepper who said they appeared happy and normal.
7. On Sunday 17 November 2019 at about 3:20 pm, a neighbour heard an argument between man and a woman. At about 4:50 pm, the accused called a friend, Diana Ramos, and said "Diana, can you come here I think [brother Ron] is dead". She also asked Ms Ramos not to tell Ms Hepper. Ms Ramos happened to be in a car a short distance and went straight to Alto Street. She found the deceased on his back in the shower recess area. He was wearing only shorts and had a dressing on his chest. He appeared to be dead. She began chest compressions on the deceased. While this was happening, she saw the accused standing in the bathroom holding a knife in her hand. The accused said something about having "washed it". The accused took over chest compressions briefly when Ms Ramos became tired, before Ms Ramos and then her partner, Jhovan Catabui, continued.
8. Paramedics attended at 5:01 pm. They noticed the deceased's body was wet and there were also wet clothes with blood in the shower recess. Paramedics observed the dressing on the centre left of the deceased's chest. Paramedics asked the accused what happened and she said "I woke up and found him in the shower. I don't know what happened. He just organised a trip to go away". When asked about the injury and where the blood came from the accused said, "he cut himself earlier in the day". When asked about the blood in the bathroom, the accused did not reply and walked away. The Crown Case Statement records that paramedics continued to ask the accused about the wound, "but she would walk away from them and not respond", at one point saying, "it's fine, I fixed it, don't worry about that".
9. At 7:24 pm, the deceased was pronounced dead. The accused was upset and crying, she sat with the body, held his hand and also "slapped him a few times to the head and told him to stop joking and wake up". Ms Hepper asked the accused what happened, to which the accused responded, "I don't know, he just went to have a shower". When asked if they had a fight she said, "no we didn't fight" and later started talking about adopting a baby and said, "I don't think he wants me to adopt a baby".
10. Police arrived and spoke with the accused. In a recorded conversation, the accused told police she found the deceased in the shower and thought he was joking. She said she told him she was going to call the police, and that she dressed the wound but did not see any bleeding. She said she asked the deceased if she should call the doctor but was told not to. When asked about the knife, the accused told police she had found it "by the toilet bowl" and said, "I even washed it to wash my hands". She said she dressed the wound and told the deceased "if you don't get up now, I'm gonna turn on the shower, you're gonna get wet".
11. The accused told police about her affair with the deceased. She also told them the deceased was attempting to book a flight home as his wife wanted him to return. She also told police that the cut to the deceased's forehead was occasioned when he was trying to set up a fan and it fell on his head.
12. The Crown Case Statement sets out the results of the crime scene analysis, including the finding of a knife, which is understood to have been used to occasion the fatal wound, and a blood-soaked T-shirt with a small cut to the left chest area consistent with penetration by a knife.
13. The accused participated in a record of interview at the police station that night. In the interview, she said she started a sexual relationship with the deceased in 2011. She said she had been pregnant with his child the previous year but suffered a miscarriage and further, that they were about to adopt a child. The accused said that when they arrived in Sydney on 10 November 2019, she suspected the accused of having another relationship. She said that on arrival in Sydney she went to the bathroom to cry, and refused to come outside until the deceased broke off the relationship with the other woman. She said that the deceased did this and they went home at about 11:00 pm.
14. The accused told police that she texted the deceased's wife and told her the deceased was having an affair. She told the police that the following day, Monday 11 November 2019, they spoke about their relationship and she told the deceased that he had to earn her trust. She repeated her account of the accused being injured putting up an electric fan. She gave an account of the following days, including a reconciliation between her and the deceased. The accused said that on Friday 15 November 2019, she spoke to the deceased about debts, and he joked that "Geraldine will solve her problems and better, I'm worth, I'm more worth when I'm dead than when I'm alive".
15. The summary of the accused's account of the events on Sunday 17 November 2019 in the Crown Case Statement includes the following: [2] "(w) The accused returned home and threw up. She woke up at about midday. When she woke up, she started thinking about her miscarriage. She said to the deceased, "You took away ten years of my life and my, my, my baby's dead because of you. And that's your baby''. She also said, "you didn't even say sorry after I lost the baby ... how can you tell me that you love me if all you do is ruin me". The deceased apologised and promised things would change. He told her to go back to sleep and he wanted to go back to the mall to buy her air pods (A534). (x) The accused woke up at about "4 something" (A915). When she woke up, she heard inaudible sounds from the bathroom. She asked, "Is this one of your Jokes?" (A535). (y) She then went to the bedroom to get the basket of medical supplies. She then cleaned the deceased and saw a knife by the toilet bowl. She used the knife to cut the deceased's shirt. The deceased was still talking and moving at this point (A535). When she cut his shirt, she saw blood on his chest (A728). There was otherwise no blood in the shower (A679) and no blood around the deceased (A936). (z) She then got up to clean her hands. She said, "/ got up and cleaned my hands, I was holding the knife, I rinsed, not all, but I cleaned, I rinsed the knife, I was holding it." (A535). (aa) Later in the interview, she repeatedly denied cleaning or rinsing the knife (A581, 745, 750). She said,"/ didn't rinse, rinse the knife. Why would I rinse the knife?" (A584). She explained,"/ don't want to touch the bandages with, with bloody hands, so I went to the sink and I put the knife down ... so I turn on the, the, the water and I wash my hands. I wasn't really like rinsing it, but somehow it's rinsing, it's rinsing, it's, the fact it's there, it's rinsing. And then I grabbed the knife, I wipe it, but there was still some blood, but not enough to drip on the tray'' (A728-729). (bb) She then placed the knife in the basket with the bandages and cleaned the deceased with a paper towel (A535). She then bandaged him (A731)."
16. She denied stabbing the deceased or being angry with him. The accused told police that the deceased had been physically abusive to her in the past. She said that she would scratch the deceased and would normally reach for his face or chest.
17. The accused told police that she was romantically involved with Jan Lei Saret, and that Mr Saret wanted the accused to "choose him".
18. Following the record of interview, the accused was released without charge.
19. An autopsy was conducted and established the deceased had died as a result of a single stab wound to the chest. The pathologist also noted the following injuries: [3] "a. a subacute abrasion to the central forehead which was 2.6cm in length b. two scratch abrasions on the back of the neck c. contusions and abrasions to the left upper anterior chest d. patterned injury to right lateral chest e. abrasion to right mid abdomen f. abrasion to left lateral shoulder g. abrasion to left posterior hip h. 4 abrasions to right upper outer arm i. abrasion to right mid volar forearm j. scratch abrasions multiple to left dorsal wrist and hand k. abrasion to right proximal dorsal forearm I. 6 abrasions to left knee and lower leg"
20. On 20 November 2019, the accused was arrested and charged with assault occasioning actual bodily harm, and released to bail. The police subsequently obtained a surveillance device warrant and obtained recordings of conversations between the accused and Mr Saret in which the accused made a number of statements relied upon by the Crown as admissions, and the subject of objection by the accused.
21. On 11 December 2019 the accused was arrested and charged with the murder of the deceased.

Evidence tendered on the voir dire

1. In addition to the Crown Case Statement, various other items of evidence were tendered on the voir dire. Initially, evidence were tendered in relation to either the admissions argument or the tendency argument. As the argument developed, some material became relevant to both issues, and it was determined that all of the evidence on the voir dire be available with respect to both arguments.
2. The Crown tendered: 1. the indictment; [4] 2. a series of still images taken from CCTV footage at Sydney airport on 10 November 2019, which show the accused walking separately to the deceased and entering the female toilets, leaving the deceased to go through customs on his own. The footage shows the deceased leaving the terminal building shortly after 11:00 am and the accused the leaving the female toilet she had entered at 1:34 pm. Footage outside the terminal building shows they did not meet up until approximately 2:30 pm and depicts violence between them described in the Crown Case Statement; [5] 3. statements of Amorlinda Hepper dated 18 November 2019 and 9 March 2020; [6] 4. the statement of Detective Senior Constable Marie Fava dated 10 December 2019, with an annexures; [7] and 5. telephone intercept transcript for "product 26" dated 30 November 2019. [8]
3. Items 1-3 were initially tendered in relation to the tendency argument, and item 4 in relation to the admissions argument.
4. The accused tendered: 1. an "admissions bundle" [9] containing reports of Dr Antony Henderson dated 2 March 2022, 7 October 2022 and 10 March 2023; a report of Dr Adam Martin dated 16 April 2023; statements of Senior Constable Jaclyn Fresch dated 29 March 2023 and 20 April 2023; and telephone intercept transcripts for "product 16" dated 29 November 2019) and "product 558" dated 9 December 2019; 2. an affidavit of Bryan Wrench of 26 April 2023; [10] 3. the affidavit of Rose Cetin dated 24 April 2023 exhibiting medical records of the accused; [11] and 4. a "tendency bundle" [12] containing the Crown case statement; a family tree diagram; the tendency notice; and statements of Jonathan Olivares dated 11 October 2020, Geraldine Olivares-Apostal dated 25 November 2021, Divinia Eugenio dated 28 November 2021, Flavia Bing Apostol dated 16 August 2021, and Maria Coy Apostol dated 21 August 2020.
5. Items 1-3 tendered by the accused were initially tendered in relation to the admissions argument. Subsequently, reference was made to the reports of Dr Henderson in the tendency argument, leading the parties to make all the evidence available with respect to each application.
6. In addition to the above, oral evidence was called by the accused from Dr Henderson.
7. I do not propose to detail the evidence referred to above. I will refer to particular parts of the evidence where relevant to my reasons.

The admissions the subject of the objection

1. The accused has raised an objection to the admissibility of six representations made by the accused and relied on by the Crown as admissions. Each of these representations were made by the accused on the telephone to Mr Saret and recorded pursuant to a warrant issued to police with respect to which there has been no challenge. Each of the conversations was in Tagalog and has been translated into English. In the case of Admission 3, the translation has been done by a person who is not an accredited interpreter. The accused has flagged an issue with respect to the admissibility of such transcripts but, for the purposes of the "Admissions" voir dire, took no issue with the admissibility or reliability of the translations.

Admission 1

1. On 29 November 2019, the accused spoke with Mr Saret for 17 minutes, during which they had the following exchange (Admission 1): [13] [Accused]: I didn't give him a chance to change [voice quavers] [Mr Saret]: Maybe, you gave him that too [Accused]: How did I give him that? I didn't give him a chance because if I gave him a chance, he would still be alive today [voice quavers]. [Mr Saret]: Maybe you gave it too, because when you woke up, you guys were still okay, [Accused]: [voice quavers] If I had given him a chance, I should have just believed in him so that he wouldn't ... like you (JAN LEI), right? I believed that you will change. I was patient with you. Why wasn't I patient with him? [Silence, 00:19:01 - 00:19:16]. I kept telling him because he was still lying. Like you, you're lying too. He said, 'Don't hurry me.' He said, 'All my life I've been a liar.' He said ... he said, 'I still have the habit of lying.' He said, 'But I'm going to change.' [voice quavers] Over and over, I told him he was hopeless. I said, 'You've hurt everyone in your life.'

Admission 2

1. During that same telephone call on 29 November 2019, the accused and Mr Saret had the following exchange (Admission 2): [14] [Accused]: What if what they are accusing me of is true? [Mr Saret]: Which is? [Accused]: That I did the... [Mr Saret]: Why would you think that when you know it's not true? [Accused]: I'm asking you if it's true. What if that's me. What if it's true? We didn't intend it. What if it's true? [Mr Saret]: If that were true, they would have proven that already. [Accused]: What? What? [Mr Saret]: If that were true, they would have proven that already. [Accused]: It's not that. It's not what they have proven. I'm asking you what if that's true? [Mr Saret]: We won't be able to talk... something... Hmm. [Accused]: What do you mean 'not able to talk'? I do not understand. [Mr Saret]: What's the question? What do you mean by 'if that's true'? [Accused]: For example, 'if that's true.' What if that's true? [Mr Saret]: Mm-mm. [Accused]: But you know, my lawyer is good. Great all around. He managed to get me through. What if that's true? [Mr Saret]: You will feel guilty too? Hmm. [Accused]: Yes, I'm not asking... Why are you interpreting my question? You're the one I'm asking. [Mr Saret]: Ok! Are you asking my opinion? If that's true? [Accused]: Your opinion or what you feel. I don't know. [Mr Saret]: Hmm. Let me think. [Accused: For example you learned that it's true. Or what if you learned that it is true or what if I was charged or you have found out that it is true? [Mr Saret: Hmm. I don't know how I would feel maybe... because... why... well maybe I know why, how bad was what he did, for several years... When Ate COY called... the day she called you... when she said. 'Killed! Killed! That's just money. It's just money,' but at the back of my head I said, you wouldn't do that because of money. But, if ever, you wouldn't do that. I thought maybe you're not in your right mind. Drunk, one can't be sure. Hmm, maybe [Unintelligible, 00:34:07 - 00:34:10]... what else happened, but if ever if that's what happened... hmm [Silence, 00:34:21 - 00:34:45]. Maybe you acted out of anger... your anger after all that you discovered. [Accused]: I didn't understand that. Your process. Your process is to explain why it was done. No. It's not a mystery. You see, it was done. What if I really did it? I'm asking you, what... what's going through your mind? How will you feel? Why are you explaining why it was done? You are not being asked to explain it. It's not your job to explain that. [Mr Saret]: The first thing that really comes to my mind is why? What happened? First thing that comes to mind if you ask what my reaction will be. It will come back again to why. Over and over, again and again, why? [Accused]: You can't answer that. You'll never know the answer to that. [Mr Saret]: Maybe... Ok, just this. Maybe this, the process when you already know what happened and then you question why. Why you did it. Why? You know what I mean? You will always ask why, what it would feel like. It's hard. I don't know. I don't know. Hmm. [Accused]: You know you didn't answer anything, right?

Admission 3

1. On 30 November 2019, the accused had a telephone call with Mr Saret, during which the accused said words to the effect of (Admission 3) (this being the product of an uncertified translator): [15] [Accused]: You son of a bitch. If I'm going to kill someone I'll kill you.

Admission 4

1. On 9 December 2019, the accused had a further telephone call with Mr Saret, during which they had the following exchange (Admission 4): [16] [Accused]: You son of a bitch, Jan Lei! You asked me to kill Ronnie, Jan Lei. You son of a bitch. [Mr Saret]: (Scoffs)

Admission 5

1. During that same telephone call on 9 December 2019, the accused stated to Mr Saret (Admission 5): [17] [Accused]: You son of a bitch! Don't make amends with me, don't fix this. You son of a bitch, don't make amends with me. You bitch. You son of a bitch, I killed a person. You bitch! You son of a bitch.

Admission 6

1. The accused then stated the following (Admission 6): [18] [Accused]: You son of a bitch, I will kill you. When I get out of here, I will kill you.
2. The accused accepted that each of the admissions constituted relevant evidence for the purposes of s 56 of the Evidence Act. While not explicitly indicated, I understand the admissions to be conceded to be relevant on the charge of murder. The Crown submissions appear to proceed on this basis. I will thus determine admissibility with respect to the charge of murder. Any contention the admissions are admissible with respect to count 1 will require further consideration.
3. Relevance having been conceded, the evidence is admissible, subject to the application of some exclusionary rule. In the case of the admissions, the accused contended the evidence was inadmissible as a result of the operation of any of ss 135, 137 and 90 of the Evidence Act.

Particular features of the evidence

1. Before turning to the application of the particular provisions, it is convenient to set out some of the issues that arise common to all the admissions including the medical evidence called on the voir dire.
2. There are a number of notable features in the present case. Firstly, none of the admissions can be regarded as unambiguous confessions.
3. Secondly, the person to whom the admissions were made, Mr Saret, is not available to give evidence. The affidavit of Mr Wrench details the unsuccessful attempts by the accused's solicitors to obtain the cooperation of Mr Saret. The accused contends that the unavailability of Mr Saret impacts her as a result of the absence of evidence he could give, both as to the context of the various conversations and as to their tone.
4. The accused accepted that had Mr Saret been available, he could not give an opinion as to what was meant by the accused when she said the various things attributed to her. Further, while translation is necessarily imperfect, no issue has been taken by the accused with respect to the translations, at least in the context of this argument. It will be necessary to direct the jury as to the caution required in placing weight on the translation of an alleged admission which is in ambiguous terms. It is true that, Mr Saret, if available could likely have given evidence of the context of the various calls, the relationship between himself and the accused and, possibly, between the accused and the deceased. Some evidence of these matters is, however, likely to be available from other witnesses in the trial. The extent of any additional evidence potentially available from Mr Saret, had he been available, is somewhat speculative.
5. In relation to what might be said about the tone the conversation, I would not accept the Crown submission that the jury could listen to the call themselves. Ascertaining time in the context of a language not spoken by the listener strikes me as a fraught exercise. It remains the case however, that the extent to which Mr Saret may have assisted the accused is speculative. Subject to submissions from the parties it may be necessary to direct the jury as to the impact of Mr Saret's absence from the trial.
6. Thirdly, the evidence is potentially impacted by particular features of the accused. Dr Henderson, forensic psychiatrist, diagnosed her as suffering a borderline personality disorder and expressed an opinion in relation to the reliability of the accused's admissions based on this diagnosis. Dr Martin provided an opinion on the request of the Crown. It is necessary to have closer regard to this medical evidence.

Dr Henderson

1. Dr Henderson's opinion with respect to the accused is to be seen in the context of him having spent considerable time with the accused, across five interviews, each of the duration of somewhere between 1.5 and 2 hours. Dr Henderson also had access to the Crown case summary, various witness statements, recordings taken in the immediate aftermath of the deceased's death on 17 November 2019, and electronic material including a video of the accused's interview with police, audio of a covert surveillance recording of the accused at the morgue viewing the deceased body, and two telephone intercept transcripts obtained after that date.
2. Likely to be relevant in the trial is Dr Henderson's opinion that the accused was "was likely to have been dissociated and experiencing (dissociative) amnesia at the material time", [19] which I take to be the time at which, on the Crown case, the murder occurred. This opinion, and Dr Henderson's reports more generally, are premised on an acceptance that the accused did, in fact, stab the deceased.
3. Dr Henderson described dissociation as follows: [20]
4. "Dissociation is a complex phenomenon, which is broadly defined as a discontinuity or disruption of usually integrated mental functions, such as consciousness, perception, attention, memory, and identity (DSM-5). Dissociation is also featured by a subjective sense of detachment from oneself (depersonalization) and the environment (derealization), whereby the individual perceived their surrounds as unreal, blurry, movie-like or lacking significance. Memory disruptions are generally universal, which can range from difficulty recalling events to complete antero-grade memory loss (dissociative amnesia)".Dr Henderson analysed various actions of the accused, established by the evidence provided to him, and made observations as to the consistency of those actions with the accused being in a dissociated state at the time of the killing and immediately thereafter. Dr Henderson further provided an opinion as to the impact of the accused's dissociated state on the capacity to understand events, judge whether her actions were right or wrong, and to control herself."
5. Of some importance to the present issue, is the analysis of statements and actions attributed to the accused around the time she is alleged to have stabbed the deceased. In particular, there are things said by the accused which provide some insight into some possible reasons for her to have stabbed the deceased, in particular, the suggestion that the deceased may have expressed an intention to return to his wife and withdraw support for the accused plans to adopt a baby. Dr Henderson said in his second report: [21] "Should the deceased have expressed his intention to return to his wife … and withdraw his support for the adoption, as suggested, I am of the view this would have represented an intolerable sense of abandonment sufficient to trigger uncontrollable rage and dissociation."
6. Dr Henderson said, with respect to the record of interview engaged in by the accused: [22]
7. "I am of the opinion the accused was in a dissociative state as a result of her [borderline personality disorder] at the time of the offending and that she was not able to remember how the deceased was stabbed when interviewed by the police on account of the associated amnesia. Dissociation is a core feature of [borderline personality disorder], dissociation is frequently associated with [borderline personality disorder], the accused scored highly on the Dissociative Experience Scale - II (DES-II) and she appeared to be in a dissociative state shortly following the offending."
8. Dr Henderson engaged in an analysis of the statements of the accused to Mr Saret and said: [23]
9. "I am of the view the phone communication between the accused and Jan Lai recorded at paragraph [116] to [119] of the Crown Case statement depicts the accused having evolved an acceptance that she has committed the offence based on a resolution of her amnestic state or an acceptance of what was most likely to have taken place, given her understanding of the circumstances."
10. In his oral evidence on this subject, Dr Henderson said: [24] "I don't find her apparent her statements or apparent admissions to be particularly reliable, given my belief that she was in a disassociated state, and more often than not people who have a dissociative amnesia, there's generally incomplete resolution of that amnesia and in that case evidence, literature in this area of dissociative amnesia would suggest that people in particular with borderline personality disorder are highly suggestible individuals and often construct an appreciation of events not based on a recollection but based on what they believe to have happened, what they have been told has happened, what they have read, and they construct, as you suggest, a false memory or a pseudo memory, and this sort of pathology of borderline personality disorder of a severe type is prone to this phenomena."
11. With respect to the likelihood that the accused had constructed a false memory of relevant events Dr Henderson said: [25] "In the narrative that has been presented it is my view, based on [Ms] Niguidula's psychopathology, that that's the most likely explanation and reason to give rise to that narrative that we are referring to."

Dr Martin

1. As noted above, Dr Martin was briefed to give an opinion by the Crown and provided a report dated 16 April 2023. Dr Martin was more circumspect than Dr Henderson in providing any definitive diagnosis of a borderline personality disorder. He said: [26] "In my view, Ms Niguidula demonstrates borderline personality traits, and the narrative history that she gives, together with information contained in the collateral sources is consistent with borderline personality disorder. Caveats regarding definitive diagnosis are that one should be circumspect in making the diagnosis of personality disorder within the limitations of cross-sectional forensic assessment, without the benefit of longitudinal assessment over a lengthy period, and in the absence of supporting collateral information such as historical medical notes. History obtained in psychiatric examination in their narrative account is important when forming an impression as to their diagnosis but is highly dependent on that person's reliability and truthfulness in giving their subjective account. Thus, it is important to seek out corroborative information such as historical medical notes where possible, when considering diagnostic issues, and when considering a person's likely mental state at the time of alleged offending. In my view, it is generally appropriate for a forensic psychiatrist to be appropriately sceptical around the self-report of an Accused person, as it is common for a person to be unreliable around aspects of their self-report in order to confer legal advantage."
2. A number of observations may be made in relation to the above. Firstly, Dr Martin does not directly disagree with Dr Henderson's opinion, but rather suggests that "one should be circumspect" with respect to a definitive diagnosis of a borderline personality disorder. Dr Martin's circumspection should be seen in the context of his having had a single session with the accused, by way of contrast to the time spent by Dr Henderson with the accused, albeit this is not a matter directly referred to by Dr Martin. (Dr Henderson did refer to this benefit in his evidence before me [27] ). More significantly, Dr Martin, by way of caveat, explicitly referred to the absence of supporting collateral information such as historical medical notes. Some notes have since become available. They are exhibited to the affidavit of Rose Cetin. [28] Those notes indicate a diagnosis of borderline personality disorder apparently made in 2007. There are also a number of references in the notes to diagnoses of a bipolar disorder. In his oral evidence, Dr Henderson noted the "tendency to [misdiagnose] borderline personality disorder as bipolar disorder". [29] Dr Martin was not called on the voir dire so no further opinion was available. It would appear that his concerns with respect to making a diagnosis have been, at least to a degree, addressed by medical notes that have now become available.
3. In any event, Dr Martin's difference of opinion with Dr Henderson, on my reading of his report, is not so much with the diagnosis as with the nature of a borderline personality disorder and whether related behaviour was "a consequence of her personality, rather than in association with mental health impairment caused by mental illness". [30] In this regard, Dr Martin said that "in psychiatry, the issue of whether personality disorder is seen as distinct from mental illness is complex and somewhat contentious". [31]
4. Dr Martin referred to the phenomenon of dissociation and accepted that "[u]nder stress a person with borderline traits is more prone to experiences of dissociation". [32] Dr Martin went on to observe that dissociation is "not considered to be a psychotic phenomenon" [33] and that "many people might experience dissociation", it being considered "a psychological defence mechanism and … common in situations of trauma or high anxiety". [34] Dr Martin did not ultimately provide any opinion in his report with respect to the possibility of dissociation having impacted the reliability of the accused's admissions to Mr Saret. I am left with Dr Henderson's opinion in this regard.

The provision

1. Section 137 of the Evidence Act provides as follows: 137 Exclusion of prejudicial evidence in criminal proceedings 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.
2. The first thing that might be noted about this provision is that it does not provide a discretion. If the test is met, exclusion is mandatory. Despite the apparent exactness of the test, the calculus it prescribes is somewhat elusive. As was observed by McHugh J in Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 (at 528), "prejudicial effect and probative value are incommensurables". More colourfully, in R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112, Spielman CJ said (at [71]) it is like, "as Justice Scalia once put it, asking 'whether a particular line is longer than a particular rock is heavy'". Nonetheless, I must determine whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused.
3. Probative value is defined in the dictionary as meaning: "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue"
4. Incorporating this definition into the provision, the test may be stated in the manner set out in R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 (at [147]): "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecution if the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue is outweighed by the danger of unfair prejudice to the defendant."
5. A determination of the extent to which the evidence could rationally affect the probability of the existence of a fact in issue, requires attention to the issues in the particular case: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [46]. Here, there are, in essence, two cases joined on the one indictment. In relation to count 1, the fact in issue is whether the accused intentionally struck the deceased with a lamp in a manner such as to cause actual bodily harm.
6. In relation to count 2, the facts in issue are (or at least were at the time the ruling was made): 1. whether the accused stabbed the deceased to the chest with a knife; 2. if so, whether she did so with the intention to kill or cause really serious bodily harm; and 3. if so, whether at the time she was suffering from a substantial impairment within s 23A of the Crimes Act 1900 (NSW).
7. While I do not understand it to be contentious, the Crown must also prove that the act of the accused substantially contributed to the deceased's death: see R v Burton at [148].
8. It follows from the above that the probative value of the evidence may be different with respect to each count, with the potential for different results as to admissibility. However, I did not understand the Crown to contend that the admissions evidence was relevant other than in relation to count 2.

Assessing probative value

1. In IMM v The Queen (at [17]), the majority (French CJ, Kiefel, Bell and Keane JJ) noted that the Evidence Act makes only "limited provision" for a court to take into account the reliability of evidence in connection with its admissibility. Their Honours observed (at [39]): "The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words "if it were accepted", which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance."
2. In the context of the admissions evidence, issues of credibility and reliability do not arise. This is because the evidence is based on recordings of lawfully intercepted communications, the which are not questioned. That is, it is accepted that the accused said the things attributed to her. Further, whilst the evidence sought to be admitted is constituted by a translation of what was said, from Tagalog to English, no issue was taken with the translations (at least for the purposes of this argument).
3. The admissions are, however, not unambiguous. That is, inferences other than that relied on by the Crown are available. The situation is not unlike that dealt with in R v Burton, which was concerned with the admissibility of a recorded telephone conversation between the complainant and the accused in which statements made by the accused and relied upon by the Crown as admissions, were also capable of an interpretation inconsistent with guilt. Simpson J (as her Honour then was) said (at [155]-[156]): "155 I have no difficulty, in this case, in accepting that the words used by the respondent in response to the complainant are susceptible of the interpretation for which the Crown contends. For the purposes of this appeal, I am prepared to accept that the respondent's words are susceptible of an alternative, more benign, interpretation which falls short of an acknowledgement of wrongdoing that is criminal in character. 156 I do have difficulty with the logic of the proposition that the existence of an alternative interpretation robs the evidence of the respondent's words of probative value, or diminishes its probative value. The probative value of evidence depends upon what the tribunal of fact draws from the evidence. If the jury accept the Crown interpretation, the probative value of the evidence will (as a matter of fact and reality) be high."
4. Later, her Honour said (at [159]-[160]): "159 … The assessment of the potential probative value of the evidence must disregard the more benign interpretation and focus on the interpretation most favourable to the party tendering the evidence. That alternative interpretation is, in my opinion, for the purpose of assessing the potential probative value of the evidence, irrelevant. What the court is concerned with at the stage of determining admissibility is its potential probative value. 160 Where an item of evidence is capable of different interpretations, or is susceptible of "competing inferences", its actual probative value will depend upon what interpretation is placed on it, or what inferences are actually drawn from it. It is no part of the judge's function to make that assessment. The function of the judge is to assess the extent to which the evidence has the capacity to bear upon the proof of the fact or facts in issue..."
5. See also R v LEH [2020] NSWCCA 135 at [29]-[31].

Assessing the danger of unfair prejudice

1. The danger of unfair prejudice refers to the danger that the evidence will be misused by the jury in some way: R v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]-[92]. The most obvious way in which this might occur is "by provoking some irrational, emotional response, or giving the evidence more weight than it should have": see Evidence (Interim) Report (ALRC 26), Vol 1 (1985) at [957]. A clearer articulation may be the use of the evidence in a manner "logically unconnected with the issues in the case": R v Lockyer (1996) 89 A Crim R 457 or, as stated in The Queen v Dickman (2017) 261 CLR 601; [2017] HCA 24 (at [48]), "unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury's assessment and it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence". It should be noted that the concept of giving the evidence more weight than it should have, is not to be confused with assessing the reliability of the evidence or the credibility of the witness, or the related considerations with respect to the drawing of inferences from the evidence. It is, rather, concerned with situations where evidence with a low probative value, perhaps because of minimal relevance, may be regarded as having greater probative value than the evidence is capable of bearing. The corollary of this proposition is that evidence will not be excluded on the basis of the danger of unfair prejudice, even though its probative value is low, where the low probative value will be readily apparent to the jury: The Queen v Dickman at [56]-[57]. The directions that might be given to the jury are relevant in assessing this danger.
2. Procedural disadvantage, such as the inability of an accused to cross-examine a relevant witness can constitute relevant prejudice for the purposes of s 137 of the Evidence Act: Galvin v R (2006) 161 A Crim R 449; [2006] NSWCCA 66 at [40]. Howie J (with the agreement of the other members of the Court) there noted that "each case has to be determined on its own particular facts depending upon the probative value of the evidence and its prejudicial effect". A similar observation was made by the Court of Criminal Appeal in R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 at [127].

The significance of Dr Henderson's opinion to the admissibility of the admissions

1. The foundation for Dr Henderson's opinion that the accused was in a dissociated state at the time of the killing is premised on her responsibility for the killing. That is, it was combination of circumstances, intolerable to the accused, that led to "uncontrollable rage and dissociation". [35] This evidence is unhelpful to the accused on the issue of whether she stabbed the deceased. It is, of course, possible that the accused experienced uncontrollable rage but did not stab the deceased. Uncontrollable rage, however, makes it more likely that she did so. Conversely, Dr Henderson's evidence as to the reliability of the admissions assists the accused with respect to this issue.
2. Dr Henderson expressed an opinion, on the balance of probabilities, that the admissions were not reliable. It was submitted on behalf of the accused that, in the absence of an opinion of Dr Martin (or anyone else) to the contrary, I was obliged to accept the opinion of Dr Henderson in this regard. I do not, however, consider that, in determining the probative value of evidence, it is in my role to find such evidence to be incapable of being given weight, except, perhaps, in the circumstance that an alternative conclusion is not otherwise open. The exercise that I am engaged in is "predictive and evaluative": R v Burton at [161] referring to R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338; and R v Zhang [2005] NSWCCA 437; 158 A Crim R 504. Simpson J in R v Burton explained (at [161]): "The predictive element is not a prediction of what the jury will make of that item of evidence on completion of the evidence in the trial; it is a prediction of the potential value of the evidence when the mosaic of evidence is complete."
3. This is not a case where I could find that it would not be open to the jury to reject the opinion of Dr Henderson. There is, as I have already indicated, the factual matrix on which Dr Henderson's opinion is based, and which it will be for the jury to consider, in particular, the triggering of rage as a result of the "intolerable" circumstances presented to the accused. Further, Dr Henderson himself acknowledges a potential alternative explanation. He said: [36] "A further controversy that is likely to arise in this case is whether the accused is considered to be malingering, feigning or intentionally falsifying amnesia in attempt to raise doubt over her culpability as an alternative to using the more risky and cognitively taxing approach of explicit deception…"
4. He also said, later: [37]
5. "An alternative explanation for the accused's inability to remember how the deceased was stabbed is malingering or feigning memory loss in attempt to lessen her culpability for the offence."
6. Thus, while Dr Henderson expressed a view that the accused's lack of recollection was genuine, he also accepted that lack of recollection is not the only potential explanation for the accused's representations.
7. To the above it might be added that that the accused when she spoke to Ms Ramos, to the police at the scene, and later in her record of interview, claimed to have found the deceased in the shower recess, having already suffered the fatal wound. There may be a need to reconcile that version of events with the accused's later accounts, although I accept they are not necessarily inconsistent.

Prejudicial effect

1. Even if I were to find that the probative value of the evidence relied on as admissions was low it, it remains necessary to evaluate the prejudicial effect of the evidence. While the probative value and prejudicial effect of each statement must be individually assessed, some general observations may be made. Dr Henderson said in his second report: [38] "It might be suggested the absence of a reliable narrative of events by the accused prevents a forensic assessment of her thought processes and the ability to determine her degree of impairment. However, it is my view that her inability to provide a reliable narrative is, in itself, indicative of her being in a state of, more than trivial and less than absolute, impairment on account of her dissociated state."
2. As discussed above, the admissions are not unambiguous. Some explicitly suggest a piecing together of events. Thus, they may be relevant to, and supportive of, Dr Henderson's conclusions. In his second report, Dr Henderson was specifically asked if he could "reconcile the lack of recall by the accused of the circumstances in which the deceased suffered his fatal injury, and the phone communication between the accused and Mr Sarat set out in the Crown case statement at [116]-[119]", [39] the subject of the present objections. Dr Henderson referred to the statements now categorised as Admissions 2 to 4 and suggested explanations consistent with a lack of actual recall of the event being discussed. No specific explanation was given with respect to Admission 1 or Admissions 5 and 6. Dr Henderson did say, with respect to the admissions generally: [40] "I am of the view the phone communication between the accused and Jan Lai recorded at paragraph [116] to [119] of the Crown Case statement depicts the accused having evolved an acceptance that she has committed the offence based on a resolution of her amnestic state or an acceptance of what was most likely to have taken place, given her understanding of the circumstances."
3. He continued, stating: [41] "I am of the opinion the phone conversations between the accused and Jan Lai between 9 December 2019 and 30 November 2019 provides supporting evidence that the accused was in an amnestic state due to dissociation at the time of the offending, which is likely to have given rise to a moderate impairment of her awareness of events and severe impairment in judgment and ability to control her behaviour at the time of the act causing the victim's death."
4. It is not without significance in evaluating the prejudicial effect of the evidence that the Dr Henderson relies on these representations as supporting the dissociative state. Of course, while the evidence may be helpful to the accused on the issue of substantial impairment, the accused's concern is with respect to the use of the evidence in relation to the first fact in issue, that is, the use of the evidence to prove the accused responsibility for the act causing death. Acceptance of Dr Henderson's opinion will have the result that the evidence will not be given any weight by the jury in relation to this issue. Alternatively, rejection of Dr Henderson's opinion will have the result that the weight given to the evidence will not be relevantly unfair. Rejection of Dr Henderson's opinion, will presumably result in the alternative postulated by Dr Henderson, that is the accused was malingering. This is not unfairly prejudicial to the accused.
5. I turn then to consider each of the individual admissions. Admission 3 will be considered last, the position of the accused in relation to this admission being contingent on the result with respect to the other admissions. While set out above, it is convenient to set up the particular admissions again when dealing with each one.

Admission 1

1. The evidence categorised as Admission 1 is set out again below for convenience: [42] [Accused]: I didn't give him a chance to change [voice quavers] [Mr Saret]: Maybe, you gave him that too [Accused]: How did I give him that? I didn't give him a chance because if I gave him a chance, he would still be alive today [voice quavers]. [Mr Saret]: Maybe you gave it too, because when you woke up, you guys were still okay, [Accused]: [voice quavers] If I had given him a chance, I should have just believed in him so that he wouldn't ... like you (JAN LEI), right? I believed that you will change. I was patient with you. Why wasn't I patient with him? [Silence, 00:19:01 - 00:19:16]. I kept telling him because he was still lying. Like you, you're lying too. He said, 'Don't hurry me.' He said, 'All my life I've been a liar.' He 'aid ... he said, 'I still have the habit of lying.' he said, 'Bu' I'm going to change.' [voice quavers] Over and over, I told him he was hopeless. I said, 'You've hurt everyone in your life.
2. The accused's representations are open to the interpretation that if she had not killed him but instead given him "a chance to change" he would still be alive. As noted above, Dr Henderson did not specifically address this representation. Given that, as indicated above, I am obliged to assess the probative value of the representation based upon the (available) inference sought to be drawn by the Crown, the probative value of this evidence is high.
3. The accused submitted that the reference to not having a "chance to change" is consistent with the accused having brought matters to a head by exposing the deceased's multiple affairs, and possibly cutting financial support, thereby putting pressure on the deceased, leading him to stab himself. Additionally, the accused argues that Mr Saret's response "[m]aybe you gave it to, because when you woke up, you guys were still okay", suggests that the accused was not here admitting to having killed the deceased. Mr Saret is unavailable to give evidence of what he meant by this response or as to the tone in which any of the words were spoken or context of what was said.
4. While I would accept there is, based on the matters referred to above, some potential unfair prejudice to the accused as a result of the absence of Mr Saret, do not regard it as a significant danger when weighed against the probative value of the evidence.
5. Further, for the reasons given above, and, in particular, the availability of Dr Henderson to explain the context in which the admissions were made and the potential impact of a dissociative state, I do not regard the evidence as having a high degree of unfair prejudice.
6. I note the unavailability of Mr Saret as discussed above. Nonetheless, I am not of the view that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. I would not reject Admission 1 on the basis of s 137 of the Evidence Act.

Admission 2

1. The evidence categorised as Admission 2 is: [43] [Accused]: What if what they are accusing me of is true? [Mr Saret]: Which is? [Accused]: That I did the... [Mr Saret: Why would you think that when you know it's not true? [Accused]: I'm asking you if it's true. What if that's me. What if it's true? We didn't intend it. What if it's true? [Mr Saret]: If that were true, they would have proven that already. [Accused]: What? What? [Mr Saret]: If that were true, they would have proven that already. [Accused]: It's not that. It's not what they have proven. I'm asking you what if that's true? [Mr Saret]: We won't be able to talk... something... Hmm. [Accused]: What do you mean 'not able to talk'? I do not understand. [Mr Saret]: What's the question? What do you mean by 'if that's true'? [Accused]: For example, 'if that's true.' What if that's true? [Mr Saret]: Mm-mm. [Accused]: But you know, my lawyer is good. Great all around. He managed to get me through. What if that's true? [Mr Saret]: You will feel guilty too? Hmm. [Accused]: Yes, I'm not asking... Why are you interpreting my question? You're the one I'm asking. [Mr Saret]: Ok! Are you asking my opinion? If that's true? [Accused]: Your opinion or what you feel. I don't know. [Mr Saret]: Hmm. Let me think. [Accused]: For example you learned that it's true. Or what if you learned that it is true or what if I was charged or you have found out that it is true? [Mr Saret]: Hmm. I don't know how I would feel maybe... because... why... well maybe I know why, how bad was what he did, for several years... When Ate COY called... the day she called you... when she said. 'Killed! Killed! That's just money. It's just money,' but at the back of my head I said, you wouldn't do that because of money. But, if ever, you wouldn't do that. I thought maybe you're not in your right mind. Drunk, one can't be sure. Hmm, maybe [Unintelligible, 00:34:07 - 00:34:10]... what else happened, but if ever if that's what happened... hmm [Silence, 00:34:21 - 00:34:45]. Maybe you acted out of anger... your anger after all that you discovered. [Accused]: I didn't understand that. Your process. Your process is to explain why it was done. No. It's not a mystery. You see, it was done. What if I really did it? I'm asking you, what... what's going through your mind? How will you feel? Why are you explaining why it was done? You are not being asked to explain it. It's not your job to explain that. [Mr Saret]: The first thing that really comes to my mind is why? What happened? First thing that comes to mind if you ask what my reaction will be. It will come back again to why. Over and over, again and again, why? [Accused]: You can't answer that. You'll never know the answer to that. [Mr Saret]: Maybe... Ok, just this. Maybe this, the process when you already know what happened and then you question why. Why you did it. Why? You know what I mean? You will always ask why, what it would feel like. It's hard. I don't know. I don't know. Hmm. [Accused]: You know you didn't answer anything, right?
2. The above exchange does not contain any explicit admission of causing the death of the deceased. Rather, the accused is contemplating the possibility that the allegation may be true and questioning what Mr Saret's response would be if it were true, reflecting a lack of recollection on her part. This is consistent with what the accused told Dr Henderson and indeed what she said to Dr Martin as recently as 31 March 2023. Dr Henderson accepts she is genuine in this regard. I cannot, however, proceed on the basis that Dr Henderson's opinion must be accepted. Further, as noted above, the accused's first account was not a lack of recollection but that she had found the deceased in the shower recess, having been fatally stabbed.
3. Alternatively, it may be possible to reason that the accused would be expected to have a recollection of relevant events and that a claim of a lack of recollection is inconsistent with her innocence. The evidence, on this basis, has probative value.
4. Again, I note the unavailability of Mr Saret. I do not find that there is a danger of unfair prejudice to the accused in the admission of evidence suggesting a lack of recollection at a time more proximate to events. If anything, the evidence establishes a consistency in the accused's account from that time to the present.
5. I would not reject the evidence categorised as admission to pursuant to s 137 of the Evidence Act.

Admissions 4 and 5

1. Admissions 4 and 5 are contained the same call, separated by a few minutes, and raise similar issues. They are: [44] [Accused]: You son of a bitch, Jan Lei! You asked me to kill Ronnie, Jan Lei. You son of a bitch. [Mr Saret]: (Scoffs) The accused also objected to the following evidence, categorised as admission 5: [Accused]: You son of a bitch! Don't make amends with me, don't fix this. You son of a bitch, don't make amends with me. You bitch. You son of a bitch, I killed a person. You bitch! You son of a bitch. … [Accused]: You son of a bitch! Don't make amends with me, don't fix this. You son of a bitch, don't make amends with me. You bitch. You son of a bitch, I killed a person. You bitch! You son of a bitch.
2. While it is not understood to be any part of the Crown case that Mr Saret asked the accused to kill the deceased, the words of Admission 4 are, nonetheless, capable of being understood as an acceptance of responsibility for doing so and have probative value on this basis. This is consistent with what the accused went on to say, that is "I killed a person" (Admission 5).
3. Dr Henderson said in his second report with reference to a statement related to Admission 4, and the statement relied upon as Admission 5: [45] "The accused stated in the phone conversation to Jan Lei on 9 December 2019 [118], "You make me kill Rhonie for you" and "I killed a person". The accused's statement suggests to me she has developed an acceptance of having committed the offence, however, is projecting the blame on Jan Lei as the reality is unacceptable to her. This acceptance may be based on a resolution of her dissociative amnestic state and recollection of events or an acceptance that she committed the act based on an appreciation of the circumstances, whilst remaining amnestic to the events."
4. It might be noted that, Dr Henderson expressed the view that, while the admissions are consistent with the accused remaining amnesic, an alternative explanation is that her acceptance was based on "a resolution of her dissociative amnesic state and recollection of events". This will be a matter for the jury, subject to appropriate directions. I have, again, had regard to the unavailability of Mr Saret. I do not regard the probative value of the evidence to be outweighed by the danger of unfair prejudice and would not reject this evidence pursuant to s 137 of the Evidence Act.

Admission 6

1. Admission 6 is: [46] [Accused]: You son of a bitch, I will kill you. When I get out of here, I will kill you.
2. This statement, on its face, says nothing about the accused's responsibility for the act causing death, or her state of mind at the time. The Crown submitted that the evidence was relevant in establishing the intensity of the relationship between the accused and Mr Saret. To the extent that the evidence is relevant and probative in this regard, it is somewhat tangential. Conversely, evidence with respect the accused's willingness to kill Mr Saret, or even to express an intention to do so, particularly in the context the death of the deceased, carries with it a danger of unfair prejudice, the evidence suggesting a lack of moral compass, control, or both.
3. With respect to the evidence objected to as Admission 6, I regard the probative value of the evidence to be outweighed by the danger of unfair prejudice, and I reject this evidence.

Admission 3

1. Admission 3 is: [47] [Accused]: You son of a bitch. If I'm going to kill someone I'll kill you.
2. The accused's objection to Admission 3 was contingent on success with respect to the rejection of the other admissions. I do not understand the rejection of Admission 6 to affect this. On that basis, I regard the objection to Admission 3 as withdrawn.

Section 135

1. The accused additionally objected to each of the admissions pursuant to s 135(a) of the Evidence Act. This provision, unlike s 137, provides a discretion to reject evidence. It is not in the same terms as s 137, although the exercise is obviously similar. For the reasons given in relation to s 137, I do not regard the probative value of Admissions 1 to 5 to be "substantially outweighed by the danger the evidence might be unfairly prejudicial" to the accused.

Unfairness - s 90 of the Evidence Act

1. Section 90 of the Evidence Act provides: 90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if - (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. Note - Part 3.11 contains other exclusionary discretions that are applicable to admissions.
2. The scope of the discretion in s 90 is not capable of definition. Each case turns to be determined on its own facts: Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [109]. Significantly, however, in the case of s 90, it is uncontroversial that the reliability of the evidence is a relevant consideration. While I would hesitate to speak of the "usual case" in the context of s 90, it is common that s 90 arises in a context where there has been some conduct by the authorities, leading to a person speaking when they would otherwise have remained silent. In such cases, the combination of that conduct, and the reliability of any confession that resulted may combine to make the evidence inadmissible.
3. In the present case the accused submitted: "Here, s 90 is enlivened because it is likely that the accused was suffering from a dissociative amnestic state arising from her borderline personality disorder at the time of the challenged admissions. This state affects the reliability of what she said, which is a factor affecting its admissibility." (citations omitted)
4. It can be seen that there is no element to the argument of the need to exercise the discretion "to protect the rights and privileges" of the accused: The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1 at [52]; R v Fantakis [2018] NSWSC 1815 at [54]; and see Fantakis v R [2023] NSWCCA 3 at [464]-[471]. As was observed in the latter case (per Ward JA at [466], Rothman J and myself agreeing), s 90 protects "the right of an accused to a fair trial" and allows consideration of "whether there is a risk of improper conviction", the provision having "been described as a '"final or safety net provision" available after the more specific exclusionary provisions of the Evidence Act have been considered and applied" citing Em v The Queen at [109], per Gummow and Hayne JJ.
5. While it is unnecessary to consider whether unreliability alone could ever provide a foundation for the exclusion of evidence pursuant to s 90, the general approach to reliability of evidence in the Evidence Act (discussed in the context of the assessment of probative value above) would suggest it would need to be an unusual case. In the present matter, I am not of the view that resolution of the issues is somehow beyond the jury, or that there is otherwise unfairness such that I should exercise my discretion to exclude the evidence.
6. It follows that I would not exclude the evidence of Admissions 1 to 5 pursuant to s 90.

Conclusion with respect to the evidence of admissions

1. For the reasons given above, the objection to Admissions 1, 2, 4 and 5 was overruled. I noted the objection to Admission 3 was, as a result of that ruling, withdrawn. I rejected the evidence categorised as Admission 6.

The nature of the objection

1. By notice dated 6 March 2023, [48] the Crown indicated its intention to rely on particular items of evidence to prove the accused has a tendency to act in particular ways, particularised in the tendency notice (the Notice) and relevant to the proof of charges.
2. The accused, subject to one exception, does not object to the admissibility of the evidence relied upon by the Crown to prove the asserted tendencies. In this regard, the accused accepts the relevance of the evidence for a non-tendency purpose. In particular, the evidence the subject of the Notice, was relied upon by Dr Henderson in coming to his diagnosis of a borderline personality disorder, and his resulting opinion with respect to matters relevant to the partial defence of substantial impairment. The exception to this general proposition is the accused's objection to one item (B3 in the Notice), which the accused contends is hearsay and not admissible.
3. The issue of substantial impairment has been raised but is only reached if it is concluded that the accused would otherwise be guilty of murder. While the evidence of the accused's borderline personality disorder may arguably mean that the accused is more likely to have assaulted the deceased in the manner alleged in counts 1 and 2, her responsibility for the respective acts, proof of the relevant intention, and the availability of the partial defence remain separate questions. The accused is entitled to rely on the evidence for one purpose while objecting to its use for a tendency purpose: Evidence Act, s 95.
4. The tendency sought to be relied upon by the Crown is relevant to the accused's responsibility for the relevant acts. At the time the matter was argued, and when these reasons were drafted, this was squarely in issue. The Court has since been informally notified that the accused's position has changed in this regard. The objection has not, however, been withdrawn, and will, consequently be determined on the basis on which it was argued.

The hearsay objection

1. It is convenient to deal with the evidence which the accused contends is inadmissible hearsay evidence: Evidence Act, s 59. Obviously, if the evidence is not admissible for any purpose, it cannot be relied upon for the proposed tendency purpose. I stress here that my role is to determine only the admissibility of evidence objected to on this basis. I will not consider other items of evidence in the Notice which might arguably be inadmissible hearsay.
2. Despite specific objection and argument directed in the accused's written submissions to the inadmissibility of item B(3) in the Notice on the basis it is hearsay, no submissions were made by the Crown, either in writing or orally, in relation to the application of the hearsay rule to this evidence.
3. Item B(3) in the Notice is described as the "scissors incident causing wound to thumb", alleged to have been occasioned in "summer of 2017". [49] The Notice indicates the evidence relied upon is that of Ms Eugenio in her statement of 21 August 2020 at [64]-[69], [50] and Flavia Apostol in her statement of 16 August 2021 at [11]. [51]
4. In her statement, Ms Eugenio says she received a telephone call in the "summer of 2017" from the deceased. She said the deceased "told me he injured his hand" [52] and went on to say that he told her that "he put his hand in a bag and unknowingly cut his left hand on a pair of scissors". [53] She said she saw him that night and his hand was bandaged. She said she again asked him what happened and he "just told me the same story". [54] She said she was not sure if she believed the story "based on what he's told me about Jenny before, so I just left it". [55]
5. Ms Eugenio said that she re-dressed the wound the next day and while doing this "I forced him to tell me what really happened". [56] She said that the deceased told her he had had an argument with the accused that "led into a fight". [57] She then said: [58] "I can't recall which one it was, but he told me Jenny was either holding a pair of scissors or she grabbed for scissors, and to defend himself he tried to take them from her and that's how he got the cut."
6. It can be reasonably supposed that the deceased intended to assert that in the course of a fight, in which the accused was either holding or had picked up scissors, the deceased, in order to defend himself, tried to take the scissors from the accused and was cut. The Crown relies on the deceased's intended assertion to Ms Eugenio as to its truth.
7. In relation to Flavia Apostol, the evidence is that the deceased told her he had an argument with the deceased and "he blocked the scissor with his palm because Jenny was trying to stab him with them". [59] She said his hand was not strapped with a bandage but that she saw "a large band-aid over it". [60]
8. Section 59 of the Evidence Act relevantly provides: 59 The hearsay rule - exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. Note - Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R v Hannes (2000) 158 FLR 359. (3) …. …
9. The evidence is prima facie inadmissible pursuant to this section. Section 65(2) provides a presently relevant exception to the hearsay rule. Notice pursuant to s 67 of the Evidence Act, of an intention to rely on s 65(2) with respect to this evidence was not given. Nonetheless, in circumstances where the Crown's intention to rely on the evidence was clear to the accused, no objection was taken based on the failure to give proper notice, and accordingly, at the hearing of this application, the notice requirement was dispensed with, which more properly, should be understood as a direction that s 65(2) applies despite the failure to give proper notice.
10. Section 65(1) and (2) provide: 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation - (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was - (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable. Note - Section 67 imposes notice requirements relating to this subsection.
11. The maker of the representation is the deceased. He is relevantly "unavailable". The evidence will therefore be admissible if one of the exceptions in s 65(2) applies. Relevant to the present case are the exceptions in s 65(2)(b) and (c).
12. Section 65(2)(b) provides an exception to the hearsay rule where the representation "was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication".
13. Based on Ms Eugenio's statement, the representation was made the day after the injury occurred. It is clear that it was not made "when" the event occurred. I am doubtful that I can be satisfied that it was made "shortly after" the asserted fact occurred. The evidence as to when it occurred requires acceptance of a hearsay representation by the deceased to Ms Eugenio the previous day and the inference, which I would draw, that the event described by the accused (the cutting of his hand) had occurred relatively recently. While Ms Eugenio saw a bandage, it is not clear whether she had seen the deceased the previous day and hence she cannot give direct evidence of when the bandage was first applied. In relation to the earlier conversation (the telephone call), the relevant representation is, for the Crown's purposes, "my hand received a cut". The inference is it was recent, and the explanation for how the cut was received is, on the Crown case, false. It is convenient, despite the issue with respect to hearsay, to accept the deceased received a cut to the hand on the day of this call and to focus on the admissibility of the deceased's representation the next day as to how this occurred.
14. The expression "shortly after" is not defined. I accept that a period of 24 hours may, in some circumstances, be "shortly after" the relevant event: Harris v R (2005) 158 A Crim R 454; [2005] NSWCCA 432. Certainly, the statement was not made when the deceased was "under the proximate pressure" of the event: Williams v R [2000] FCA 1868; 119 A Crim R 490 at [33]. Here, it is not clear whether, for example the telephone call was in the morning and the representation now relied on was the next evening. The uncertainties as to timing are such that I am doubtful it could be described as "shortly after" the event.
15. I am, in any event, not satisfied that the statement was made "in circumstances that make it unlikely that the representation is a fabrication": Evidence Act, 65(2)(b). While I am entitled to have regard to all the evidence before me, including evidence of previous violence between the accused and the deceased, the primary focus is on the circumstances surrounding the representation. I note in this regard the deceased made a consistent representation to his mother, Flavia Apostol. However, the deceased had twice given an earlier inconsistent account. While the earlier account was arguably unconvincing, it was not incredible. Even if I were to regard the earlier account as false, this does not make the later account true. That later account, relied upon by the Crown, was provided when Ms Eugenio "forced him to tell me what really happened". [61] It is apparent that the deceased's representation was made in circumstances where it was clear to him Ms Eugenio was not satisfied with his previous version. The evidence suggests the deceased was accustomed to lying to women with whom he was in a relationship. These matters are pertinent to concerns with respect to potential fabrication. For these reasons, I would not find that the representation was made "shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication".
16. Section 65(2)(c) provides an exception to the hearsay rule where the representation was "made in circumstances that make it highly probable that the representation is reliable". While, unlike s 65(2)(b), there is no requirement of temporal proximity, the provision sets a higher bar with respect to reliability (based on the unlikelihood of fabrication or otherwise). Having regard to my conclusion in relation to s 65(2)(b), I am also of the view that the exception in s 65(2)(c) does not apply.
17. With respect to Ms Flavia Apostol's evidence, it is not clear how long after the event the relevant representation was made. Given that she saw a band aid rather than a bandage, it would appear to be later than when the representation was made to Ms Eugenio. I cannot be satisfied that it was made "shortly after" the event occurred, or that the other preconditions in s 65(2)(b) or (c) are satisfied.
18. The evidence relied on to support item B(3) is inadmissible. It is necessary then to consider the tendency argument in the absence of item B(3) in the table.

The tendency sought to be proved

1. The Crown seeks to prove the following tendencies on the part of the accused: (1) As set out in [6] of the Notice: "a) Her tendency to act in particular ways, namely: i) Whilst in a relationship with [the deceased], and during arguments, to engage in violence towards [the deceased] by the use of physical force upon areas of his body using her hands and/or fingernails and/or other objects; and [ii)] To create and/or recount false stories about how [the deceased] suffered visible injuries to his body." (2) As set out in [7] of the Notice: "a) Her tendency to act in a particular way or ways, namely, to engage in violence towards male persons, with whom she is in a relationship, by the use of physical force upon areas of their body using her hands and/or fingernails and/or other objects."

The tendency evidence

1. The evidence relied upon in support of the above tendencies was split into three categories. The evidence in category A is the evidence in the Crown case in support of count 1, which is sought to be relied upon in support of count 2.
2. The evidence in category B is constituted by various events, either involving specific acts of violence by the accused or statements of witnesses with respect to general conduct by the accused against the deceased. It might be noted that category B also includes count 1 despite it being in, and in fact, the only item in, category A. Category C is of a similar nature to category B but with respect to acts against the accused's former husband Jonathan Olivares.

Category B

1. The events in category B were set out in the Notice as follows (with reference made to the source of the evidence which I do not include here): Incident Date Summary of circumstances The accused had an argument with Jonathan Olivares and the deceased. During the argument, Scratches to both men sustained scratches to
2. face at Mother's Day lunch 22/05/12 their face. The accused agreed on a story with the two men that they had sustained the scratches from bushes. During an argument, the accused began hitting the deceased. This was witnessed by Jonathan Olivares. The accused was swinging her arms and hitting the deceased to his Assaulting arms and head. Jonathan Olivares
3. Both deceased and Olivares 6/6/12 intervened and sustained injuries to his face. The accused then grabbed a television remote and began hitting Jonathan Olivares across the face with the remote. This caused his nose to bleed. He also sustained a laceration to his face. During an argument, the accused grabbed a pair of scissors. The
4. Scissors incident causing wound to thumb Summer 2017 deceased tried to take the scissors from the accused and sustained a wound to his thumb requiring three stitches The accused argued with the deceased at Sydney Airport after she discovered the accused was intimate with another woman. The
5. Sydney Airport 10/11/19 accused punched the deceased to the face and threw a mobile phone at him. Divina Eugenio heard the accused slapping [the deceased] over the phone. During an argument, the accused
6. Count 1 AOABH 10/11/19-14/11/19 hit the deceased in the head with a LED lamp, causing a laceration to his forehead. The accused told others that [the deceased] had injured himself whilst installing a ceiling fan. (i) [The deceased] would have to take hold of the accused's hands to stop her from doing things like grabbing items and hitting him with them, or slapping him.
7. Generally (ii) The accused had been violent towards [the deceased] (iii) The accused "came at" [the deceased] with a knife and cut his wrists with the knife when he held them up to defend himself.

Category C

1. The events in category C were set out in the Notice as follows (again excluding references to the source of the evidence): Incident Date Summary of circumstances During an argument with Jonathan Olivares, the accused damaged his
2. Burning laptop Summer 2009 property and tried burning his laptop. The accused punched Jonathan Olivares with a closed fist multiple times. The accused had an argument with Jonathan Olivares and the
3. Scratches to face at Mother's Day lunch 22/05/12 deceased. During the argument, both men sustained scratches to their face from the accused. During an argument, the accused began hitting the deceased. This was witnessed by Jonathan Olivares. The accused was swinging her arms and hitting the deceased to his arms and head. Jonathan Olivares
4. Assaulting both deceased and Olivares 6/6/12 intervened and sustained injuries to his face. The accused then grabbed a television remote and began hitting Jonathan Olivares across the face with the remote. This caused his nose to bleed. He also sustained a laceration to his face. During his marriage to the accused, Jonathan Olivares suffered physical assaults perpetrated by the accused, including throwing objects
5. Generally at his head or torso. In 2013, Maria Corazon Apostol saw scratches and bruising on his body from the accused having assaulted him.

Admissibility of the evidence for a tendency purpose

1. The principles to be applied were helpfully summarised by Bell P (as the Chief Justice then was) in Taylor v R [2020] NSWCCA 335 at [122]. I will not set out that lengthy summary but will refer to specific aspects of those reasons as appropriate in the course of my consideration of the evidence.
2. It will be necessary to apply those principles to the evidence with respect to count 1 and count 2 separately. Given the different nature of the acts in count 1 and count 2, while the degree of probative value of the evidence relied upon to prove the asserted tendency will be the same, the significance of the tendency will be different, given the different nature of the acts sought to be proved.

Evidence in category A and B relied on to prove the accused's tendency to "whilst in relationship with [the deceased], and during arguments, to engage in violence towards [the deceased] by the use of physical force upon areas of his body using her hands and/or fingernails and/or other objects".

1. I begin with a consideration the admissibility of the evidence in category A and B to prove the tendency set out in [6(a)(i)] of the Notice in support of count 1 in the indictment. This is the asserted tendency of the accused to "whilst in relationship with [the deceased], and during arguments, to engage in violence towards [the deceased] by the use of physical force upon areas of his body using her hands and/or fingernails and/or other objects".
2. A tendency on the part of the accused to engage in violence of the type described, while in a relationship with the deceased, is relevant in proving the accused assaulted the deceased in the manner alleged in count 1. It should, however, be noted that, given the matter to be proved, a tendency to engage in violence by the use of force involving the use of an object is of greater probative value than the use of force by the use of hands or fingernails. The asserted tendency being relevant proof of the charge, it is then necessary to consider whether the evidence has probative value in proving the tendency. That probative value is to be considered in the manner already discussed above in the context of the s 135 and s 137 of the Evidence Act: see Taylor (at 122-(iv)).
3. In considering whether the individual items have "significant probative value", it is necessary to consider each item in the context of the other items and the other evidence in the case. The various items of evidence relied upon in categories A and B have probative value in proving the asserted tendency. It might be noted that the tendency asserted is to act in a certain way while in a relationship with the deceased. The evidence of the earliest point from which the accused was in a relationship with the deceased is in the record of interview where the accused said she started a sexual relationship with the deceased in 2011. (Other evidence referred to in the Crown Case Statement suggests others were not aware or did not have suspicions until later, but I proceed on the basis of the accused's admission). With the exception of item B(6)(ii), each event in the Table B post-dates, at least inferentially, the commencement of the relationship. B(6)(ii) is a statement by the deceased's mother that she knew the accused had "previously been violent towards" [62] the deceased but that she could not "exactly recall when" but that it was "some years ago". [63] There is, thus, no indication of when this event occurred and it is thus not evidence that the accused was violent to the deceased at time they were in a relationship. I accept that the evidence is capable of proving that the accused was violent towards the deceased and, considered with other evidence (s 97(1)(b)), could thus support a conclusion she was violent towards him whilst they were in a relationship.
4. Evidence will be of "significant probative value" if it "has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent" or it "has more than mere relevance but something less than a 'to potential degree of relevance'": Taylor at 122. There is no requirement for there to be striking similarities between the proposed tendency evidence and the charged offence, although this will of course be relevant to the degree of probative value: Taylor at 122 and (vii).
5. Items B(1) and B(2) relate to events in May and June 2012. This is seven years before the event sought to be proved. That period itself does not mean the evidence is incapable of satisfying the test of significant probative value. However, here there is no evidence of a continuation of the tendency in that period of seven years. The relatively general nature of the tendency further diminishes the probative value of the events occurring a significant period of time before the charged conduct. I note that there is evidence the accused was, at various times, taking medication for a mood disorder, diagnosed at points as a bipolar disorder. [64] There is also evidence that the accused, at times came off that medication due to a desire to fall pregnant. While Dr Henderson regards this treatment for bipolar to have been a misdiagnosis, the proper diagnosis being, in his opinion, borderline personality disorder, the accused was at various times taking a drug designed to impact her mood but was not necessarily taking this consistently. While this creates uncertainty with respect to a continuing tendency to act in a particular way across a significant temporal span, given the uncertainty surrounding the impact of any medication, I do not regard that circumstance as robbing the evidence of its probative value. Nonetheless, having regard to the nature of the events and the temporal gap, I do not regard items B(1) and B(2), considered with the other evidence, to be presented as having significant probative value.
6. Item B(6)(i) in the table is evidence that the deceased would "have to take hold of the accused's hands to stop her from doing things like grabbing items and hitting him with them, or slapping him". This evidence is of a very general nature. It is unclear as to when these events occurred, what the precise circumstances were, or the level of conviction with which the accused acted. I do not regard this evidence, considered with the other evidence to be presented, as having significant probative value. Item B(6)(ii) involves even less clarity. It appears to a reference to a single event, the nature and timing of which is not known. The same conclusion follows.
7. With respect to items B(4), B(5) and B(6)(iii), I am mindful of the fact that the events are relatively general in nature, and only three in number including the charged offence (that is, item B(5)). However, B(4) and B(6)(iii) are proximate in time to the allegation in count 1 (B(5)). B4 occurred on 10 November 2019. B(6)(iii) is not specific as to the date. However, the deceased's complaint was that the accused "came after him with a knife" resulting in injuries to his wrists from blocking the knife. This complaint was made in the context of the deceased sending Maria Apostol photographs showing the injuries, with the inference that they had been sustained relatively recently and certainly after his arrival in Australia. Such proximity is generally relevant. It obviates the concerns discussed above with respect to relying on events temporally removed from the charge sought to be proved. Further, each of these events involves the use of an item to attack the deceased. While I would accept that the tendency is relatively general and the nature of the assaults not uncommon, on balance, I am of the view that items B(4), B(5), B(6)(iii) each viewed together and with the other evidence in the case, have significant probative value in establishing the asserted tendency, which in turn has significant probative value in establishing count 1.
8. I am satisfied the evidence in items B(4), B(5) and B(6)(iii), of the accused's tendency to, whilst in relationship with [the deceased], and during arguments, to engage in violence towards [the deceased] by the use of physical force upon areas of his body using her hands and/or fingernails and/or other objects, has significant probative value in proof of count 1.

Evidence in category A and B relied on to prove the accused's tendency to "create and/or recount false stories about how deceased suffered visible injuries to his body"

1. I turn next to a consideration of the admissibility of the evidence in category A and B to prove the tendency in [6(a)(ii)] of the Notice in support of count 1 on the indictment. This is the asserted tendency of the accused to "create and/or recount false stories about how deceased suffered visible injuries to his body". Such a tendency is probative of the commission of the offence in count 1 in that the tendency would impact the reliability of the accused's account that the deceased suffered the injuries the subject of count 1 when a ceiling fan fell on his head.
2. There are only two events in category A and B of the Notice in which it is suggested the accused created, or recounted, "false stories" in relation to injuries suffered by the deceased. The two events are B(1), where the accused agreed with the deceased that scratches to the deceased were to be explained as having been occasioned by bushes, and B(5), which is also count 1, where the accused told others the deceased was injured installing a ceiling fan.
3. The purpose to which the tendency is directed is somewhat indirect. More importantly, the evidence does not have significant probative value in establishing the relevant tendency. The two events are separated by a period of some seven years. Covering up, or lying about misconduct is common behaviour. That is, the asserted tendency is hardly unusual.
4. The second event carries with it the additional complication that the account given by the accused is only false if it is proved the injury occurred in some other way, with the only available alternative on the evidence being in the manner alleged by the Crown. While different burdens of proof are involved, there is some complexity to the reasoning required. I put this to one side, however, given that the Crown is entitled to have the probative value of the evidence assessed on the basis that the account given by the accused was false. Nonetheless, the relatively common nature of the tendency asserted, the low number of instances, and the gap between them, are such that the evidence does not have significant probative value within the terms of s 97(1)(b) of the Evidence Act.
5. Finally, I note the accused submitted the evidence was inadmissible as it was credibility evidence: see Evidence Act, ss 101A, 108A, 108B; and definition of "credibility" in the dictionary to the Evidence Act. Given the view I have formed above, it is unnecessary to consider this question. I note that the proposition is, at least, doubtful. In this regard, I did not understand the accused to submit that the evidence was not relevant and admissible for a purpose other than the assessment of the credibility of the accused: Evidence Act, s 101A. My present view is that the evidence is relevant as exculpatory accounts of the events.

Evidence in category B and C relied on to prove the accused's tendency to "engage in violence towards male persons, with whom she is in a relationship, by the use of physical force upon areas of their body using her hands and/or fingernails and/or other objects"

1. I turn next to a consideration of the admissibility of the evidence in category B and C to prove the tendency in [7(a)] of the Notice, namely "the accused's tendency to engage in violence towards male persons, with whom she is in a relationship, by the use of physical force upon areas of their body using her hands and/or fingernails and/or other objects".
2. The events in table B and C together are significant in their number. This adds to the probative value of the evidence as evidence of the asserted tendency: Taylor at 122(a). I have, above, considered the evidence in Table B. I accept that the exercise here is different in that I am considering the evidence in Tables B and C together as evidence of the tendency in [7(a)] of the Notice (noting that in each case I am required to consider the proffered tendency evidence in the context of all the evidence to be presented). The conduct in Table C is, however, of a relatively general kind, although the event in C(9) bears some similarity to the allegation in count 1.
3. A significant feature of the present matter is the temporal gap between the events in category C and the charged conduct. Category C relates to Jonathan Olivares. His relationship with the accused ended in 2013. The evidence relied upon in the Notice in category C necessarily predates that time. There is an absence of evidence to establish the continuation of any "tendency" between 2013 and 2019. The significance of a similar, albeit slightly longer, gap has been discussed above. Having regard to the nature of the evidence and the temporal gap, the evidence in category C does not, in my view, have "significant probative value" in proof of the asserted tendency, as relied on in proof of count 1.
4. I note that the category B evidence I have admitted with respect to the tendency in [6(a)] of the Notice, might also be regarded as having significant probative value in proof of the tendency in [7(a)] of the Notice. However, given that tendency is more general than that asserted in [6(a)], that evidence adds nothing and is not separately admissible for proof of the tendency in [7(a)] of the Notice.

Count 2 - murder

1. The nature of the acts in each of the items in the Notice is significantly further removed from count 2 than from count 1. It follows that any evidence I have found to be inadmissible for a tendency purpose with respect to count 1, is likewise inadmissible for a tendency purpose with respect to count 2.
2. It is necessary then to consider whether the three items, B(4), B(5) and B(6)(iii), have significant probative value in proof of count 2 on the basis of their ability to prove the specified tendency. (As already noted, the evidence in B(5) is also that in Table A and count 1 on the indictment).
3. As with the reasoning above, these events are likewise reasonably temporally proximate to count 2. They are, however, of an entirely different nature. Count 2 represents a very significant escalation in conduct. The accused in count 2 is alleged to have used a knife to stab the deceased to the chest. Even if considered with all of the evidence in the Notice, that is, the various occasions on which the accused became enraged and assaulted the deceased or Mr Olivares, the injuries occasioned by such previous conduct has been limited. In the vast majority of cases, the weapon involved was not one that would ordinarily be thought of as a weapon, such as a remote control, a phone, or a lamp.
4. I accept the tendency evidence I have found to have significant probative value for the purposes of the tendency in [6(a)] of the Notice, supports the accused having attacked the deceased to the head. Nonetheless, the risk of life threatening injury appears to have been low (although I note the injuries occasioned in B(5) (also Table A in the Notice and count 1) were reasonably proximate to the deceased's eyes, with an associated risk of more serious injury). The use of the mobile phone in B(4) was unlikely to cause more than minor injury. The event in B(6)(iii) does involve the use of the knife. The evidence as to the circumstances surrounding this are, however, somewhat vague. The evidence in support of this event is in the statement of Maria Apostol. [65] She states, "he told me the cuts on his wrists were from blocking the knife from Jenny" and that "Jenny came after him with a knife". [66] The photograph sent by the deceased annexed to Maria Apostol's statement shows cuts to the back of the deceased's wrist. The cuts themselves do not appear to be particularly serious. There is no suggestion of any dressing being required. It is not known whether there was any attempt by the accused to actually stab the body of the deceased, although I would infer there was at least an attempt to apply the knife to some part of the deceased's person. It is, however, not clear, what, if any, part of the body was targeted, or otherwise how the injury was occasioned. It is not known what injury, if any, might have been occasioned had the deceased not blocked the knife. There is no suggestion that, following the deceased having blocked the knife, there was any further attempt to occasion serious injury. While for the purposes of count 1, the evidence in B(4), B(5) and B(6)(iii) is significant in that each involves an attack with a weapon, on two occasions resulting in injury, for the purposes of count 2 the probative value is significantly less. Count 2 involves a stabbing to the chest involving sufficient force to result in death. It is of a very different nature.
5. Offences of actual bodily harm are relatively common. Offences of murder, and equally relevant, assaults involving life threatening injury, are relatively rare. Where a person has on numerous occasions inflicted actual bodily harm on another, it does not follow that the person has a tendency supportive of a conclusion that, on some other occasion, they inflicted a life threatening injury. Of course, each case falls to be considered based on its own facts. For the reasons given above, on the facts here I am not satisfied that any of the evidence sought to be adduced for tendency purpose has significant probative value in proof of the offence charged in count 2.

Section 101 of the Evidence Act

1. While, I have found that B(4), B(5) and, B(6)(iii) have "significant probative value", that evidence cannot be used against the accused unless the probative value of the evidence outweighs the unfair prejudice to the defendant: s 101(2). Section 101(2) of the Evidence Act provides: 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution … (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 outweighs the danger of unfair prejudice to the defendant.
2. The accused expressly disavowed reliance on s 101(2) of the Evidence Act on the basis that the evidence will, irrespective of its admissibility for a tendency purpose, be before the jury. While this circumstance may reduce the prospect of unfair prejudice, it does not eliminate it. It is well recognised that one of the dangers in the use of evidence for a tendency purpose is the natural inclination to overestimate the significance of a tendency as proof the person behaved in a similar way on the occasion the subject of the charge: Taylor v R at [122]; R v SK; SK v R [2011] NSWCCA 292 at [34], RH v R (2014) 241 A Crim R 1; [2014] NSWCCA 71 at [169]; Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [17]; [71]-[74].
3. Significantly, in the present case, neither party appears to have considered the use of count 1 (item B(5)) to prove the asserted tendency, in proof of count 1 and the significance of s 101(2) of the Evidence Act to this issue. It may be that it was never intended to rely on the evidence in support of count 1 to prove a tendency then relied on to prove count 1. The separate existence of category A in the Notice, seeking that the "[e]vidence in respect of [c]ount 1 be admitted as tendency evidence in support of [c]ount 2" suggests this. Category A is unnecessary as a result of the inclusion of count 1 in category B. Nevertheless, count 1 is included in category B and I have, accordingly, considered the admissibility of this evidence for a tendency purpose, as set out above.
4. In considering the danger of unfair prejudice, it is necessary to consider the directions available to be given to the jury. Section 161A(1) of the Criminal Procedure Act provides that a jury must not be directed that evidence adduced as tendency evidence needs to be proved beyond reasonable doubt. Section 161A(2) of the Criminal Procedure Act provides that that where, as here, the evidence is adduced as evidence in support of the tendency as well as evidence of an element of the offence, the jury may be directed that the evidence needs to be proved beyond reasonable doubt, "but only to the extent that it is adduced as proof of the element or essential fact". Sections 161A(1) and (2) (subject to s 161A(3)) require me to direct the jury that they are able to use the evidence in support of count 1, with other tendency evidence, to prove the accused's tendency, and then use that tendency in support of proof of the act constituting count 1. Further, s 161A(1) and (2) of the Criminal Procedure Act prohibit a direction that the event must be proved beyond reasonable doubt when considering whether the relevant tendency is proved, albeit a direction that the evidence must be proved beyond reasonable doubt is permitted (and would indeed be required) in establishing the event as proof of an element of the offence.
5. Section 161A(3) of the Criminal Procedure Act provides that the prohibition in s 161A(1) does not apply where a court is satisfied there is a significant possibility that a jury will rely on the act as essential to its reasoning in reaching a finding of guilt, and the act is adduced as tendency evidence. This provision was described in the second reading speech as maintaining the availability of a direction in accordance with Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56: see Gardiner v R [2023] NSWCCA 89 at [196]-[197]. An element of an offence (such as the striking of the deceased alleged here), will necessarily be relied on by the jury as "essential to its reasoning in reaching a finding of guilt": s 161A(3)(a) (although an element would not ordinarily be described as an "intermediate fact" in the Shepherd v The Queen sense). The evidence is also adduced as tendency evidence: s 161A(3)(b). Applying this, on its terms, s 161A(3) has the effect that s 161A(1) does not apply to evidence of count 1 adduced as tendency evidence. This is difficult to reconcile with s 161A(2).
6. It is unnecessary to resolve the issues referred to immediately above. They are concerned with directions rather than admissibility. In the present circumstances, a direction to the jury that the evidence relied upon for count 1 must be proved beyond reasonable doubt before being used for a tendency purpose in proof of count 1, would be pointless. If established beyond reasonable doubt, no further step is required; the act will have been proved. (I note here that the evidence does not appear to permit a finding of an accidental striking with a lamp). The alternative is that the jury be directed that they could find the relevant tendency proved having regard to all the evidence directed to that tendency, including the evidence in count 1. I proceed on the assumption that this is the direction I would be required to give.
7. Certainly, care would be needed in formulating a direction that the tendency could be proved based, at least in part on the evidence in support of the count, in order to prove the count. The directions will, otherwise, be apt to undermine the standard of proof with respect to the charge: JS v R [2022] NSWCCA 145 at [40]. I have concerns, however, as to the capacity of even careful directions, to be given in the particular circumstances of this case, such that the standard of proof is not undermined and the evidence not given more weight than is appropriate.
8. This is, for example, not a case involving multiple counts which are cross-admissible as tendency evidence. In such a case, it will be necessary to rely on charged conduct with respect to the tendency. In such a case, the jury will more readily understand that the evidence is being considered together for one purpose (establishing the tendency), and then each count is to be considered on its own.
9. A case such as the one described above, does not involve the complication of a single charged event having a significant role in the determination of the relevant tendency. The concern in the present case, is that with only one charged offence, and that being one of only three events making up the tendency evidence, the charged event will have a dominant role in finding the tendency proved. This is not a problem of itself. However, the event in B(5) is (obviously) the event that most closely resembles the matter to be, ultimately, proved beyond reasonable doubt (being identical). Should the jury accept (to no particular standard of proof) the accused had the asserted tendency, there is a real danger the jury will place undue weight on the tendency given the contribution of conduct identical to that to be proved to proof of the tendency. In other words, there is a real danger in the circumstances of this case that the jury will, consistent with the concern raised in the various authorities referred to above, give in to the natural inclination to overestimate the significance of the tendency.
10. Further, count 1 is joined on an indictment with count 2. Count 2 is a far more serious charge. Any directions I give in relation to count 1 are unlikely to receive the same focus as those with respect to count 2. This increases the risk the jury will misuse the evidence.
11. Having regard to the above considerations, I am of the view that the probative value of the event in B(5) of the table, as tendency evidence to prove count 1, does not substantially outweigh the prejudicial effect it may have on the accused. That evidence may not, therefore be used for a tendency purpose.
12. The same concerns with respect to the events in B(4) and B(6)(ii) do not arise. With respect to that evidence, I am satisfied the probative value of the evidence outweighs the danger of unfair prejudice to the accused. Further, the availability of the events in B(4) and B(6)(iii) is such that, if B(4) is excluded as evidence of the asserted tendency, there remains evidence with a high probative value to prove the tendency.

Conclusion with respect to the objection to the tendency evidence

1. The evidence of items B(4) and B(6)(ii) in the Crown's tendency Notice of 6 March 2023 is admissible to prove the accused had a tendency to act in a particular way as specified in [6(a)(i)] of that Notice in support of Count 1 on the indictment. The accused's objection to the Crown's reliance on tendency evidence is otherwise upheld.

Endnotes

1. Exhibit VD-4, Tab 1
2. VD-4, Tab 1, [91]
3. VD-4, Tab 1, [106]
4. Exhibit VD-A, Tab 1
5. Exhibit VD-A, Tab 2
6. Exhibit VD-A, Tab 3
7. Exhibit VD-A, Tab 4
8. Exhibit VD-A, Tab 5
9. Exhibit VD-1
10. Exhibit VD-2
11. Exhibit VD-3
12. Exhibit VD-4
13. Exhibit VD-1, Tab 7, p 79
14. Exhibit VD-1, Tab 7, p 82-85
15. Exhibit VD-A, Tab 5, p 3
16. Exhibit VD-1, Tab 8, p 6
17. Exhibit VD-1, Tab 8, p 8
18. Exhibit VD-1, Tab 8, p 9
19. Exhibit VD-1, p 12, [3.6]
20. Exhibit VD-1, Tab 2, p 28, [4.8]
21. Exhibit VD-1, Tab 2, p 13, [3:10]
22. Exhibit VD-1, Tab 2, p 34, [4.27]
23. Exhibit VD-1, Tab 2, p 36, [4.35]
24. Tcpt, 26 April 2023, p 22(3)-(13)
25. Tcpt, 26 April 2023, p 22(27)-(29)
26. Exhibit VD-1, Tab 4, p 57-58, [48]
27. Tcpt, 26 April 2023, p 18(10)
28. Exhibit VD-3
29. Tcpt, 26 April 2023, p 24(42)
30. Exhibit VD-1, Tab 4, p 63
31. Exhibit VD-1, Tab 4, p 59
32. Exhibit VD-1, Tab 4, p 58
33. Exhibit VD-1, Tab 4, p 62
34. Exhibit VD-1, Tab 4, p 62
35. Exhibit VD-1, Tab 2, p 13, [3.10]
36. Exhibit VD-1, Tab 2, p 31, [4.17]
37. Exhibit VD-1, Tab 2, p 34, [4.28]
38. Exhibit VD-1, Tab 2, p 31, [4.18]
39. Exhibit VD-1, Tab 2, p 35
40. Exhibit VD-1, Tab 2, p 36, [4.35]
41. Exhibit VD-1, Tab 2, p 36, [4.37]
42. Exhibit VD-1, Tab 7, p 79
43. Exhibit VD-1, Tab 7, p 82-85
44. Exhibit VD-1, Tab 8, p 6
45. Exhibit VD-1, Tab 8, p 8
46. Exhibit VD-1, Tab 8, p 9
47. Exhibit VD-A, Tab 5, p 3
48. Exhibit VD-4 (Tab 3)
49. Exhibit VD-4, Tab 6 [64]
50. Exhibit VD-4, Tab 6
51. Exhibit VD-4, Tab 7
52. Exhibit VD-4, Tab 6 [64]
53. Exhibit VD-4, Tab 6 [64]
54. Exhibit VD-4, Tab 6 [65]
55. Exhibit VD-4, Tab 6 [65]
56. Exhibit VD-4, Tab 6 [66]
57. Exhibit VD-4, Tab 6 [66]
58. Exhibit VD-4, Tab 6 [66]
59. Exhibit VD-4, Tab 7, p 90.
60. Exhibit VD-4, Tab 7, p 90.
61. Exhibit VD-4, Tab 6, [66]
62. Exhibit VD-4, Tab 7 [10]
63. Exhibit VD-4, Tab 7 [10]
64. Exhibit VD-3
65. Exhibit VD-4, Tab 8
66. Exhibit VD-4, Tab 8 [118] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2023