R v Ramage [2004] VSC 391

5. It is also common ground that the accused caused the deceased's death and that he did so by a conscious, voluntary and deliberate act or acts, although as I understand it there is some controversy as to the possibilities concerning the potential mechanism of death.

8. The defence puts in issue firstly, the intent requisite for the crime of murder and secondly, the issue of lawful excuse by reason of provocation. The question of whether provocation should be left to the jury remains to be resolved.

11. The defence takes the position that the accused accepts responsibility for the crime of manslaughter but that he should be found not guilty of murder.

14. There are three areas of preliminary dispute which have been raised for my determination prior to the commencement of the trial.

(1) Whether the Crown should be permitted to adduce evidence of certain matters bearing on the relationship between the accused and the deceased?

(2) What photographs should go to the jury?

(3) Whether the witness MZ[1] is to be regarded as a relevant witness and the related question of whether evidence of an affair by the deceased with another man should be put before the jury.

Relationship Evidence

20. The accused was born in 1959 and the deceased in 1960. They met when teenagers and married in 1980. There were some problems early in the marriage and in 1984 they separated for some six months. After reconciling and resuming living together they had two children, Matthew born in 1985 and Samantha born in 1987. At the date of their mother's death Matthew was completing his secondary schooling and Samantha was in the course of undertaking such schooling.

23. Some five weeks prior to her death the deceased left the accused while he was on a business trip to Korea and Japan. She set up home in a flat with her daughter, while her son remained at the former matrimonial home. When the accused returned home he sought to restore the marriage. The deceased did not cut off communication with the accused but continued to speak to him, had a series of dinners with him on Tuesday nights, attended counselling sessions with him, travelled with him to Geelong to watch their son play football, and ultimately went out to see the accused at the former matrimonial home on the day she was killed.

26. It appears to be common ground that the evidence of what occurred at the time of the killing is to be understood in the context of the breakdown of the relationship between the accused and the deceased. Indeed Mr Dunn agrees that the defence requires a narrative of the break-down of the relationship as the context for its case with respect to intent and provocation. In this regard the defence places particular reliance upon the sequence of events in the six days prior to the killing of the deceased. It follows that the dispute as to relationship evidence is confined to aspects of relationship evidence only.

29. The matters that are in issue go to evidence which the Crown seeks to rely on in two ways. Firstly, it is said the evidence is relevant as demonstrating motive and intention to kill or cause really serious injury and will show:

* The accused had great difficulty in dealing with rejection;

* That he not only desired to restore the marriage but to remain in control of the situation; but

* That awareness of loss of control and knowledge the deceased had formed a relationship with another man and was unlikely to return to the accused caused him to attack her with murderous intent.

35. Secondly, the Crown seeks to rely on relationship evidence as showing that the deceased had a continuing underlying fear of the accused. In turn it is said that this evidence will lay the foundation of a submission that there is no reasonable possibility the deceased said the words attributed to her by the accused and which are said by the defence to form the basis of the reasonable possibility of provocation.

38. The defence submits that the evidence in issue is in substance and effect an attack upon the character of the accused of no, or no material probative effect with respect to the accused's guilt.

41. Before turning to the matters in issue it is necessary to address the applicable principles of law. In R v Anderson[2] Winneke P stated:

"In cases of this kind, where the parties have been living together for a substantial period of time preceding the events in question, courts have traditionally admitted evidence of the pre-existing relationship between them provided that it has a bearing on the facts in issue. This is particularly so where the evidence is relevant to the state of mind of the accused at the time when the acts alleged occurred. Thus such evidence has been admitted to prove motive or to establish the intent of the accused, or to negative a defence of accident, self-defence or provocation. Such evidence can be admitted either for or against the interests of the accused. It would be contrary to common sense, for example, to exclude evidence which pointed to an entirely harmonious and compatible relationship between the accused person and his wife or partner if such evidence was relevant to the defence of the accused person (Wilson v R, supra, at 337 per Barwick CJ). Likewise it would be contrary to reason and commonsense to exclude evidence of previous violent acts by the deceased towards the accused person, or others, if such conduct had a relevance to the issues at trial (see Re Knowles [1984] VicRp 67; [1984] VR 751)."

45. After further reference to the judgments in Wilson v R and the many cases in this country where relationship evidence has been admitted to prove the state of mind of either the accused or the victim Winneke P further stated:

"Evidence of the relationship between the parties has been admitted, not simply because it describes the relationship of the parties but because particular acts or statements occurring within that relationship are relevant to the issues arising in the case."[3]

49. After reference to the leading judgment of Gleeson CJ in R v Ritter[4] Winneke P further stated:

"These remarks, if I might say so with respect, accurately point up the proposition that it is the purpose for which, or the basis upon which, the evidence is tendered which will play a significant part in the court's determination as to whether it should be admitted, and the degree of cogency which is required to support its admission. That has always, so far as I am aware, been the effect of the common law principles."[5]

"Where the evidence is tendered, not as evidence of propensity to commit the crime charged but as bearing on the accused's state of mind at the relevant time, the judge must be satisfied that the evidence is relevant to a fact in issue, and must warn the jury that they cannot use the evidence for the impermissible purpose of demonstrating a propensity on the part of the accused to commit that crime."

57. In R v Frawley[6] Gleeson CJ stated at 220:

"One of the difficulties affecting consideration of relationship evidence is that the concept of relationship is vague. In a particular case, such as the present, it may be necessary to identify with more precision what is in question. Frequent and serious quarrelling between a couple, of a kind that goes beyond what Menzies J referred to in Wilson as ordinary difficulties and disagreements, may be relevant to whether one intended to kill the other, or to some other issue in a criminal trial. That is one kind of relationship evidence. What, however, of evidence of the state of mind of one party to a relationship? If one party to a relationship is accused of murdering the other, admissible evidence of the accused's state of mind may well be relevant. It is less likely that evidence of the victim's state of mind will be relevant, although, as the authorities cited above show, it may be relevant, depending on the issues in the case. Again, evidence that one party says things derogatory of the other party, in the other party's absence, is a form of relationship evidence. Whether or not it is admissible may depend upon the circumstances, and it is not particularly helpful to begin with an assumption that, in a case of homicide involving a man and a woman, evidence of their relationship is admissible. In this case I find it preferable to avoid the label 'relationship evidence' and to seek to describe more accurately and more particularly the subject matter."

61. At 222 Gleeson CJ specifically addressed the question of hearsay evidence.

"However, because the appellant argues that a substantial part of the material in question is hearsay, it is useful to recall some well established principles for the purpose of putting that submission into perspective: (1) The question of hearsay only arises when the words spoken (or written) are relied upon testimonially, to establish some fact narrated by the words or to establish the fact that the words were used: Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970; Ratten at 387. (2) Evidence of an out-of-court statement by a person may be admissible, without any question of hearsay arising, where the fact that the statement was made is itself relevant to the fact in issue. Thus, a statement made by a deceased person may form part of the circumstances surrounding the death of the deceased from which an inference as to a relevant matter may be drawn. On that ground evidence of the fact that the statement was made may be admissible, without there being any question of using the contents of the statement testimonially. In Ratten, a telephone call made by the deceased shortly before her death had significance in a variety of ways. It proved that the deceased was still alive at a critical time; and it demonstrated a state of fear on her part which was relevant to the circumstances in which she met her death, the accused claiming that he had accidentally shot her. Similarly in Walton the fact that the deceased says certain things in a telephone conversation not long before she died was relevant in a number of ways to matters in issue at the trial. (3) Sometimes evidence as to an out-of-court statement is directed to the state of mind, knowledge or belief of the maker of the statement. Reception of evidence on this basis depends upon the relevance of such state of mind, knowledge or belief to the issue in relation to which the evidence is tendered: Blastland [1986] AC 41. What is said above in relation to evidence of out-of-court assertions of fact is also true of evidence of out-of-court statements of opinion or belief. Depending upon the circumstances of the case, evidence of that kind may be relevant, not to show the correctness of the opinion or the reasonableness of the belief, but to show some other fact relevant to a fact in issue in the trial. The very fact that an opinion or belief is held, right or wrong, may in some cases be relevant. In my view the preferable approach in a case such as the present is not to consider the matter in terms of generality as to 'relationship' but, rather, to consider whether the evidence in question is direct evidence of any fact relevant to a fact in issue."

65. In Frawley evidence was held to be admissible which comprised direct evidence of heated arguments between the deceased and the accused and of admissions of hatred by the accused for the deceased. On the other hand hearsay evidence was held to be both inadmissible and highly prejudicial.

68. Mr Leckie further put the Crown case with respect to relationship evidence by reference to the propositions first summarised by Coldrey J in Arnott[7] and repeated in G_ojanovic (No. 2)_[8]:

"(1) The evidence of the prior relationship, (being a relationship of enmity or antipathy), of the accused and the deceased must be reasonably explanatory of the conduct with which the accused is charged; (2) Such evidence must be adduced to establish motive, or intent, or the fact of the commission of the offence charged; (3) It is not necessary that any particular incident the subject of evidence pertaining to the relationship should singly and of its own force establish a relationship of enmity. It is sufficient if the incident related makes a contribution which is not insignificant or insubstantial to the climate of enmity or antipathy; (4) An incident in a relationship which is isolated or remote in time from the death may be insufficient to have any bearing on the issues of motive or intent or the fact of the commission of the crime charged; (5) Evidence of a prior relationship of enmity or antipathy is not to be led as evidence of bad character or of a propensity towards violence of an accused."

72. Mr Leckie places particular emphasis on the third proposition and I accept that the admissibility of particularly pieces of evidence should be assessed in the context of the part they may play when taken together with the Crown case as a whole. Nevertheless it is necessary that individual pieces of evidence be of more than insignificant or insubstantial probative effect.

75. Conversely, Mr Dunn emphasised the fourth and fifth propositions. Again, I accept that temporal remoteness may raise significant issues as to the relevance of a fact in issue. Further, it is fundamental that relationship evidence is not to be led as evidence of bad character or of a propensity towards violence.

78. Mr Leckie also referred to the decision of the Court of Appeal in R v Parsons[9] as exemplifying a case in which evidence of fear by the deceased of the accused was held to be admissible as rebutting the reasonable possibility that the deceased made provocative statements in the terms alleged by the accused. In that case evidence was admitted of expressions of fear of the accused by the deceased in and during 1997 - the deceased having been killed in December 1997. Evidence going to the earlier relationship between the parties was excluded. The evidence admitted was accepted by the Court of Appeal to have been relevant as going to the probability of the deceased having smirked or otherwise provoked the accused before he killed her.[10]

81. Whilst Parsons undoubtedly confirms the principle for which Mr Leckie contends, it also demonstrates that even in what might properly be called a case of dramatic relationship evidence questions of relative relevance and remoteness may arise.

85. Mr Leckie indicated that it was not currently proposed to call evidence from Clive Ramage, Helen Shubart or Ian and Rhonda McMurtie.

88. He further indicated that he did not intend to lead evidence of opinion or belief of lay persons expressed in a number of the witness statements.

91. Nor did he intend to lead evidence of the alleged use by the deceased of the phrase "he will kill me" in a series of pieces of anecdotal evidence as to concern on her behalf as to the possible reaction by the accused to her conduct.

Statements to Counsellors and Medical Practitioners

95. It is convenient first to deal with a series of statements made by and in the presence of the accused to counsellors and medical practitioners. Such statements are not attended by the hearsay complications attaching to the other relationship evidence in issue.

98. I shall generally refer to specific passages in the depositions by reference to the page and paragraph number in the same format as that adopted in Mr Dunn's outline of submission, e.g. 284-3.

102. Mr Patterson saw the deceased and the accused for the purposes of counselling six days prior to the deceased's death. Mr Patterson's evidence records the account that the deceased and the accused gave of their relationship and of concerns with respect to it.

105. It is as I understand relied on by the Crown as:

(a) testimonial evidence as to the history of the relationship;

(b) evidence as to the state of mind of both the deceased and the accused, such state of mind being evidenced by both relevant assertions of fact and opinion; and

(c) evidence of expressions of state of mind by the deceased to the accused and by the accused to the deceased a relatively short time prior to the killing of the deceased. Such expressions are said to be capable of being regarded by the jury as informing the subsequent actions and statements of the parties.

111. The Crown places particular reliance upon the relevance of evidence which it contends supports the view that as at 21 July 2003 the deceased remained in continuing fear of the accused, which fear it contends was founded in the long standing pre existing relationship.

114. Mr Dunn at one point characterised the evidence as "an accounting of the relationship between the two of them, as understood at 15 July", I accept this characterisation but would add that the jury could regard it in material respects as a mutually accepted truthful accounting.

117. It must be kept in mind however that the trial of the accused is not an inquiry into the reasons for the breakdown of the marriage and in particular the deceased's reasons for leaving the accused.

120. The defence further submits that the real significance of Patterson's evidence is that it forms part of a critical sequence of meetings and communications between the deceased and the accused in the period immediately prior to her death. These bear directly upon the accused's state of mind at the time of the killing. The sequence includes the following matters:

* A joint visit to Rosemary De Young for counselling on 15 July 2003;

* The visit to Patterson for further counselling at 5.45 p.m. on 15 July 2003;

* A dinner together on the evening of 15 July 2003;

* Advice to the deceased from Webb that he was prepared to divorce his wife in order to be with the deceased on 18 July 2003;

* A trip by the deceased and the accused alone together to see their son play football at Geelong Grammar on Saturday 19 July and associated conversations;

* The spending of 20 July 2003 by the deceased with Webb and advice to her daughter that she intended to live with Webb; and

* The voluntary visit of the deceased to the accused at their former matrimonial home on 21 July 2003.

131. The defence contends that when this sequence of events is understood it can be inferred that the deceased's state of mind was not a static thing. The evidence as to earlier events must be evaluated in this context.

"Julie explained that they had married young and had a few problems earlier on. She said that Jamie had been quite violent a couple of times and she had left him for six months in 1982."

138. This passage leads into 318-1 which is also objected to:

"They got back together and then had kids. Then there was another incident of violence. I infer from what she said that after that James realised that she would not tolerate physical violence, but she said that there was still intimidation, for instance he would break glasses. Julie felt she couldn't leave because of the children. She went on to say that he has a lot of personal traits which she didn't desire. That he is very controlling, possessive, potentially violent and wanted to be with her all the time. She had horses which she had to secretly withdraw money to pay for feed. She felt like she had to be the super housewife and mother and had to also work hard and earn money. She had to be the attractive wife."

142. These passages form part of a coherent narrative. This continues as follows:

"Recently she had been saying whatever, agreeing with James instead of fighting which built up hatred inside her. She was thinking about leaving in November when Matthew was finished year 12. She said that a few days before Jamie left for business in Korea he said a nasty petty thing and she moved out. This was over a month before the session. She has been very happy since the separation since she didn't have to worry about James' reaction to things. James stated that the majority was his fault, he wouldn't listen. He said that he wouldn't have been seeing a counsellor if Julie hadn't left. ..."

146. In my view the evidence in issue is admissible:

* It forms part of a characterisation of the relationship by the deceased shortly prior to her death and is relevant to the Crown case as to fear of the accused;

* It is stated in the presence of the accused and responded to by him;

* The defence cannot in my view rely on the evidence of what was said to Patterson for the purposes of a narrative of the communications between the parties at this point in time and simultaneously require substantial editing or filleting of those communications;

* Subsequent statements in the report such as "he admitted that he had been too controlling" are materially affected as to their import if the matters referred to are removed;

* Although the evidence given is in part as to the early history of the marriage the account in issue reflects the state of mind of the deceased at a time relatively contemporaneous with her death;

* Insofar as there is reference to violence at a time remote from the killing such reference is susceptible to appropriate directions to the jury with respect to the impermissibility of using such evidence as propensity evidence.

"Julie said that 18 months ago James had pushed her off the bed. She had got conditioned to worry about his reactions."

159. In my view the statement is admissible for like reasons:

* It is relevant to the Crown case with respect to fear by the deceased of the accused;

* The reference to pushing establishes the context in which the deceased goes on to say:

"She had got conditioned to worry about his reactions."

It forms part of a coherent narrative and the defence cannot in my view materially edit or fillet that narrative

* It is a component of the deceased's state of mind as communicated in the interview close to the date of her death.

* It is susceptible to an appropriate propensity direction.

169. Objection is next taken to 320-1, 2 and 3. These paragraphs are an elaboration of what the deceased and accused believe precipitated violence early in the relationship. In my view they are admissible for like reasons. Ultimately they lead to the statement at 320-6 to which I shall shortly come.

172. The next matter objected to is the statement at 320-4 and 5:

"I asked what was the worst injury James had inflicted on her. They replied James had had (sic) head butted Julie while Julie was on the floor and had hurt her nose. I gathered that this incident had occurred early in the marriage."

176. Particular exception is taken to this passage because of its prejudicial nature and in particular the potential for the jury to treat it as propensity evidence.

179. The fact of the event in issue is confirmed by other evidence including further direct admissions by the accused. The Crown contends that evidence of the statement should be admitted both as evidence of the event itself and of the deceased's state of mind. It is said that the deceased had suffered an act of violence which was not trivial and the reference to it in discussion with Mr Patterson bears on the probable level of continuing anxiety affecting the deceased at the time she made her final statements to the accused. The context of the incident is further elaborated in the evidence of Drs. Webster and Buchanan.

182. In my view this evidence of what I shall refer to as "the head butting incident" should be excluded.

* It relates to an incident which other evidence shows occurred in 1991 and is therefore remote in time from the events with which the jury will be concerned;

* It is elicited by specific inquiry and is not volunteered by the deceased in her initial characterisation of the marriage relationship;

* It is a statement by both the accused and the deceased and it is not clear to what extent it was put forward by the deceased herself;

* It is severable from the preceding account without destroying the sense of that account;

* Its effect upon the deceased's state of mind as at the time of her death must be contentious given both the intervening 12 years of marriage and the specific sequence of events following separation;

* Its probative weight as to the deceased's state of mind as at the time of her death is in my view outweighed by its prejudicial effect.

192. The last matter arising from Mr Patterson's evidence is the statement at 320-6 that:

"Julie said that she was impressed that James had not done anything hurtful after she left. She thought that he might have hurt her horse and had been fearful that he would punish her."

196. In my view this statement is admissible as reflecting the deceased's state of mind relatively shortly prior to her death. Further, it forms part of the communications which the defence contends are of real significance. It is not possible to sever the second sentence from the first without affecting the sense of the whole. It is also not possible to sever this final statement from the description of what was said during the counselling session without affecting the sense of those communications as a whole. Conversely, from the defence point of view, the first sentence may be said to dilute the effect of both the second sentence and the prior history.

200. Ms De Young saw the deceased and the accused earlier on the same day as Mr Patterson. I take the statement at 359-5 to be a reference to the head butting incident and it should be excluded for the reasons I have set out above.

204. The evidence of Dr Webster and Dr Buchanan as to the circumstances of the head butting incident in 1991 should be excluded for like reasons. That of Dr Webster is also hearsay.

208. Ms Marcus is a Psychologist who saw the accused for counselling purposes on 26 June 2003, shortly after the deceased had left her. In my view the reference to a specific incident some 15 years ago at 323-4 is again to be understood as a reference to the head butting incident and should be excluded for the reasons I have stated.

211. The statement as to the argument concerning Samantha at 323-4, 324-1 is not materially probative of the Crown case. If reflects a mother's emotions concerning her daughter. The fact of the argument concerning Samantha is necessary to the narrative of the witness but the substance of it and the account of the accused's feelings concerning it should be excluded.

215. Mr Fullerton is a Psychologist who saw the accused for counselling purposes on 24 and 30 June and 7 July 2003.

218. 357-3 refers to the pushing out of bed episode. In my view it is admissible for like reasons to those I have given with respect to the comparable passage in the evidence of Mr Patterson. The passage in issue is an essential element of the narrative given to Mr Fullerton. Further, it is difficult to see that further reference to the episode will occasion undue prejudice to the accused if, as I have ruled, it is referred to in the evidence of Mr Patterson. As I have said it will be necessary to give an appropriate propensity direction.

222. The relationship evidence of the witnesses which is in issue is of two principal kinds:

a) evidence of expressions of fear by the deceased which the Crown contends goes to negative the probability of provocative statements; and

b) evidence of controlling behaviour which the Crown contends goes to support its case as to motive and intent.

It can be seen that the second category potentially confronts problems of a hearsay character which the first category may escape.

229. Ms Ashton is the twin sister of the deceased. I shall deal with the objections to her evidence and with the objections to the evidence of other witnesses in the sequence adapted in the evidence.

235. 285-2 relates to the head butting incident and should be excluded

238. 286-4 relates to instances of controlling behaviour. It is not clear how much it is founded in hearsay, but it appears probable that it is in substantial part so founded. It is also remote from the events in issue. In my view it should be excluded. It is not materially probative of the intent of the accused or the deceased's fear.

244. 287-3 is evidence of an expression of fear that the accused would hurt the deceased's family if the deceased left him and lived with a member of her family. In my view this is not materially probative of the Crown case. It refers to a fear concerning persons other than the deceased and is remote in time from her death.

"She told me that he would force her to have sex with him, via emotionally controlling her by questioning her love for him. She told me that she had to be sexually compliant due to threat of violence or anger."

251. In my view evidence of this statement should be excluded.

* No comparable complaint was made to Mr Patterson in the course of what otherwise appears to have been a comprehensive characterisation of the relationship six days prior to the deceased's death;

* The allegation of sexual misconduct is of indirect relevance only to the case as to fear for which the Crown contends;

* It is highly prejudicial, amounting as it does to an allegation of rape. (I shall refer to like allegations in other parts of the evidence as allegations of "sexual dominance");

* Such probative weight as the evidence has is materially outweighed by its prejudicial potential.

263. 288-3 and 289-1 comprise an account of the dispute concerning Samantha. In my view this account is admissible as to the fact of the dispute but not admissible as to the substance of the argument for like reasons to those which I have already given with respect to evidence of the same kind.

266. The evidence as to consideration of a restraining order at 290-2 is not materially probative of the Crown case and should be excluded if objected to (as it was at one point orally, although not referred to in Mr Dunn's outline).

269. The objections to 291-1 and the first sentence of 291-2 are conceded. The further statement in 291-2 concerning the phone call to Rosemary is hearsay. It does not materially add to what was said to Mr Patterson as to the deceased's fears and should be excluded.

272. 293-1 relates to the head butting incident and should be excluded. Insofar as it further contains an opinion it should also be excluded and was conceeded.

275. The objections to the mid portion of 297-2 and to the narrative in 297-3 are conceded.

286. The last sentence of 311-6 is not materially probative of the Crown case and if objected to should be excluded.

289. 312-1 relates to the head butting incident and should be excluded.

295. 314-1 deposes to belief as to whether the deceased and the accused were alone together. Evidence as to this belief should be excluded. The statement "Mum initially didn't trust him, not to try and persuade her to come back or not be violent" does not purport to refer to the deceased's continuing state of mind and if objected to should be excluded.

306. 345-4 and 5 relate to the head butting incident and should be excluded.

309. The objections to 346-1, 2, 3 and 5 are conceded save for the history of the deceased's studies and business endeavours which is admissible.

315. 347-3 is conceded save for the history of leaving which is not contentious.

321. 347-5 concerns the shoving incident which was admitted to Mr Patterson. Evidence as to the fact of discussion of the event is admissible. But the hearsay evidence as to what the deceased stated as to the substance of the argument and the evidence of discussions as to what the deceased should do are not materially probative of the Crown case and should be excluded.

324. 347-6 and 348-1 set out hearsay as to what the deceased told the witness the accused said to her at the time she returned to the home after having left it in 2001. Insofar as such evidence is put forward as part of the evidence bearing on the deceased's state of mind the evidence of these statements is of low probative value and is outweighed by their prejudicial potential. It should be excluded.

327. 348-2 contains evidence of allegations by the deceased of sexual dominance by the accused. As I have previously indicated such probative weight as this evidence may be said to have is outweighed by its prejudicial effect and it should be excluded.

330. 348-5 concerns evidence of distress by the deceased at being late for golf with the accused in January 2003. In my view the probative weight of this evidence is outweighed by its potential prejudicial effect. This is particularly so when there exists an explanation for panic at that time arising out of the reasons for the deceased being late.

333. 349-2 deposes to statements of fear that the accused would find out about the deceased's friendship with the witness MZ. In my view the evidence of fear of violence in Fashion Week 2003 is relevant to the Crown case as to fear by the deceased of the accused but the use of the phrase "he will kill me" must, as the Crown accepts, be excluded.

336. 349-5 includes the phrase "he'd kill her" which should be excluded. Evidence of expressions of fear in May 2003 as to what the accused would do if he thought the deceased was with someone else is admissible as relevant to the Crown case concerning fear.

339. 349-6 and 350-1 concern the argument over Samantha. The fact of upset over the argument is admissible but the hearsay as to the substance of the argument should be excluded for the reasons I have already stated.

345. Save for the phrase "he would kill her" evidence of the statement of fear as to what the accused would do if he found out about Laurence contained in 351-3 is admissible. Other matters concerning the proposal that the witness visit Jamie are irrelevant and should be excluded. As I understand it the alleged warning to the deceased is not objected to.

349. 362-2 is to be understood as referring to the head butting incident and should be excluded.

353. The objection to "James would kill her" in 365-6 is conceded. The question of whether evidence referring to Sean should be adduced at all is a matter of separate contention to which I shall return.

356. The objection to 367-1 with respect to thoughts concerning a restraining order is conceded.

360. The objections to 370-2 and 371-1 are conceded.

364. The objection to hearsay evidence of counselling sessions at 376-1 is conceded.

367. Part of the objection to 378-4 being the reference to violent and argumentative conduct is conceded. In my view the whole of the statement as to what the deceased felt should be excluded. Insofar as it refers to the state of mind of the accused it is hearsay and does not add materially to the direct evidence in this respect. Insofar as it reflects the state of mind of the deceased it is not materially probative of the facts in issue.

371. Reference to the head butting incident in 380-4 should be excluded.

374. It is conceded that reference to the possibility of killing in the evidence at 218 should also be excluded.

378. The objections to 395-4 and396-1 are conceded.

385. The objection to 399-1 is conceded save that the statement "she was frightened to leave" is to be regarded as evidence of a statement by the deceased. In my view the statement is too vague to be materially probative of the Crown case and should be excluded.

388. Likewise 399-2 is too vague to be materially probative of the Crown case as to fear. It otherwise appears to be hearsay and should be excluded.

391. The objection as to evidence of the substance of the argument at 399-4 should be accepted for the reasons I have previously stated with respect to like evidence.

394. 400-3 relates to an expression of fright by the deceased before she went to breakfast with the accused, who came to her workplace after they had separated. I accept that this expression of fear is part of the sequence of events and if it is deleted the reference to the deceased's general happiness which is next described is misleading. In my view the narrative with respect to the deceased's state of mind after she separated from the accused is relevant to the Crown case as to fear. It should be admitted.

397. 400-4 comprises evidence as to the behaviour of the deceased at the Botanical Hotel in the absence of the accused. In my view it is not materially probative of the Crown case and should be excluded.

407. 404-2 concerns allegations of sexual dominance and should be excluded for the reasons I have previously stated.

410. The objection to 404-3 is conceded with respect to the evidence after the fourth line.

416. The objection to the last four lines of 405-4 is conceded. The first three lines are relevant to the Crown case as to fear and form part of the narrative of the deceased's reactions. In my view they are admissible.

419. The passage objected to in 408-5 concerning gut feelings is conceded. The statement as to fear of the consequences if the accused knew of Laurence is admissible in substance but the phrase "he would kill her" should be excluded. The relationship with Laurence did not commence until very shortly prior to the deceased's death.

426. 413-3 commences with allegations of sexual dominance which should be excluded for the reasons I have previously stated. The objection to the central portion of the paragraph is conceded. The reference to contemplation of an intervention order application should be excluded for reasons I have previously stated. It is of no material probative value to the Crown's case. The last portion of the paragraph is not pursued by the Crown.

433. 518-5 and 519-1 evidence statements by the deceased as to the accused's temper. The time of the conversations is not identified and in my view the evidence is of low material weight. It should be excluded as disproportionately prejudicial.

436. The objections to 519-2, 3, 4 and 5 are conceded.

439. The objection to the epithet in 520-1 is conceded.

442. The objection to the phrase "kill her" in 520-2 and to the witness' evidence of her own reaction is conceded. Evidence as to the substance of the initial communication is admissible as relevant to the Crown case as to fear and as to the narrative of communications by the deceased with respect to the relationship.

458. I take 560-4 to be a reference to the head butting incident and it should be excluded.

125 Photo 36 is the least graphic image showing the body of the deceased as it was found. In my view it is relevant to an understanding of the deceased's injuries and should be admitted.

126 Photo 150 shows deep haemorrhages within the dissected forearms of the deceased. In my view this evidence is relevant to an understanding and evaluation of the forensic medical evidence and should be admitted. It bears on matters which are potentially of some controversy.

127 Photo 160 shows deep haemorrhage below the shoulder muscle. In my view unless this injury becomes more controversial than I currently understand it to be, this photo should not be admitted. It is graphic and potentially shocking to some viewers.

128 Photo 163 shows bruising to the deceased's head and subcutaneous haemorrhage. In my view it is relevant to the understanding of the forensic medical evidence and should be admitted.

466. Mr Dunn seeks to put in photographic evidence of frontal lividity. In my view the least offensive photograph in this regard is 134. It also seems to me that the pattern of overall lividity must be disclosed if the jury are to make sense of this aspect of the matter. I am, on reflection, however, not presently persuaded photograph 130 is necessary for the purpose of such evidence. I reserve leave to Mr Leckie to re-open the issue for the purposes of re-examination should he so desire.

469. In assessing these questions I have had regard to the decision of the New South Wales Court of Appeal in R v Zammit[11], and to the Victorian decision of R v Telford[12].

473. The Crown opposes calling evidence from MZ with whom the deceased had an affair prior to and up until some two weeks after her separation from the accused. The Crown further objects to evidence being adduced of a prior affair with Sean Mays.

476. The accused stated in his record of interview that the statements of the deceased which caused him to lose it culminated as follows:

"... Then she said - the sex with me and, 'it repulses me,' and - and this and - and screwed up her face and, whereas he knows all about what - she sort of said that - she sort of said about how much better he was and she knew what - that he was caring and so on and then sex with me repulses her. And then she sort of got up to finish the conversation or finish the - you know, like, we finished the food and so on. ... And that's where I lost it."

480. Mr Dunn in argument put to the Court that his instructions were that the deceased's statements went beyond this, but for present purposes I do not propose to go beyond the record of interview.

483. Insofar as the conversation alleged refers to another man it can only be understood to refer to Laurence Webb. Nevertheless, the reasonable possibility of the deceased saying that sex with the accused repulsed her, could be viewed by a jury as gaining some support from evidence that she had had affairs with other men at and prior to the time of separation. The evidence goes to what the deceased probably said and not to the accused's understanding of what she said.[13]

486. Furthermore, MZ spoke with the deceased in the period leading up to and on the day of her death.

489. In my view MZ is a material witness and should be called.

492. Further evidence of the affair with Sean Mays is also relevant and may be adduced.

[1] Whose identity I have suppressed for reasons not connected with this ruling.

[2] [2000] VSCA 16; (2000) 1 VR 1 at [30] p.12

[4] Unreported, New South Wales Court of Criminal Appeal, 31 August 1995

[6] (1993) 69 A Crim R 208

[7] (1995) 79 A Crim R 275

[8] [2002] VSC 118; (2002) 130 A Crim R 179 at 180

[9] [2000] VSCA 15; (2000) 1 VR 161

[10] See pp.167-168 per Brooking JA with whom Phillips CJ and Hampel AJA agreed.

[11] [1999] NSWCCA 65; (1999) 107 A Crim R 489

[12] (1996) 86 A Crim R 427

[13] cf. Re Knowles [1984] VicRp 67; [1984] VR 751 at 768