EVIDENCE - Criminal law and practice - murder trial - what "relationship" evidence is relevant

EVIDENCE - Evidence Act 1995, s 65(2) - criminal law and practice - the subsection operates in relation to proof of events prior commission of the alleged offence

EVIDENCE - Evidence Act 1995, s 65(2)(b) and (c) - meaning of "shortly after" - meaning of "in circumstances that make it" unlikely or highly probable - excludes consideration of subsequent events and other representations

EVIDENCE - Evidence Act 1995, s 65(9) - meaning of "matter"

EVIDENCE - Criminal law and practice - operation of s 65(9) where issue anticipated.

Evidence Act 1995, s 65(2) & s 65(9)

Bond (1906) 2 KB 389

Frawley (1993) 69 A Crim R 208

Lock (1997) 91 A Crim R 356

Matthews (1990) 58 SASR 19

Ratten [1971] UKPC 23; (1972) AC 378

Wilson [1970] HCA 17; (1970) 123 CLR 334

The accused is charged with the murder of the deceased on 25 March 1997. The deceased died from stab wounds. The accused admits that he inflicted the wounds from which the deceased died. He does not admit that he intended to kill the deceased or to cause grievous bodily harm, although that inference is likely to be drawn.

There was what I might call a boyfriend-girlfriend relationship between the couple. They met at a restaurant where they were both employed at about Christmas 1996. They had known each other for only three months when the deceased was killed.

The accused will raise provocation and will advance the partial defence of diminished responsibility.

A preliminary argument as to whether certain evidence should be admitted has proceeded on the foregoing basis.

For the purpose of the defence of diminished responsibility Dr Canaris, psychiatrist, has been qualified by the accused. The accused's counsel has indicated that the accused will give evidence conformably with the history taken by Dr Canaris. That will be, so far as is presently relevant, that the accused is from India, that the deceased was his first girlfriend and the first woman with whom he had had a sexual relationship, that the couple kept company for about three months, that he loved her very much and believed she loved him, that she had agreed to marry him and that the relationship survived various strains from outside sources. The implication in this account is that the relationship was, in the accused's perception, a close and happy relationship. The accused's account then continues: that the deceased told him on 23 March 1997 that she wished to terminate the relationship, that he was very upset, and that he went to her flat on 25 March 1997 where the deceased met her death at his hands. That is a very truncated summary but it serves the present purpose.

My ruling is sought in relation to the admissibility of evidence which the Crown wishes to adduce from various witnesses who were associates of the accused and/or the deceased in the period Christmas 1996 to 25 March 1997.

By calling these witnesses, the Crown wishes to advance a case that the relationship was not as the accused will assert. In particular, the Crown's case is that the accused was inordinately possessive concerning the deceased from the start, to the point that he had formed an intention to kill the deceased if she terminated the relationship or did not treat the relationship as seriously as the accused believed she should.

Some of the disputed evidence goes to the relationship between the accused and the deceased. In Wilson [1970] HCA 17; (1970) 123 CLR 334 it was said that evidence of a tense and bitter relationship (per Menzies J at 344), or of mutual enmity (per Barwick CJ at 337) would be relevant. This was explained by reference to Bond (1906) 2 KB 389 where it was said (at 401) that such evidence may reasonably be treated as explanatory of the conduct of the accused charged in the indictment. I take that to mean that such evidence may make plausible conduct which would otherwise be implausible, and thereby advance proof of the Crown case. By the same token, evidence of a close and affectionate relationship would favour the accused (Wilson per Barwick CJ at 337). Such evidence might make the alleged conduct implausible.

These statements cannot, however, be generalised into a proposition that all evidence concerning a relationship is relevant. As was said in Frawley (1993) 69 A Crim R 208, the concept of relationship is vague and all "relationship evidence" is not necessarily relevant to the issues in the proceedings (per Gleeson CJ at 220 and Sheller JA at 225). A more rigorous approach is required than merely to ask whether evidence goes to the nature of the relationship in some way or other. It was decided in Frawley that evidence of statements by the victim concerning her own thoughts and feelings about the relationship were not admissible.

Generally speaking, that will be so. Relationship evidence will only be relevant if it is probative of what the accused did or did not do as an element of the alleged crime (eg stab the deceased) or probative of the accused's state of mind at that time (eg that the act was or was not deliberate, or done or not done under provocation or in self defence). What the other party thought or felt about the relationship will generally speaking, be irrelevant to such issues.

There will be exceptions, however, where the other party's thoughts or feelings are directly relevant to an issue as to what the accused did at the time of the alleged crime or to the accused's mental state at that time, or are indirectly relevant to such an issue. That may occur where the evidence goes to whether some event occurred in the course of the relationship or where the evidence goes to the accused's state of mind at the earlier time, in a way which bears upon an ultimate issue.

The cases illustrate such exceptions. In Ratten [1971] UKPC 23; (1972) AC 378, the other party's fear of the accused was relevant because it was regarded as probative of the accused's act being deliberate. In Matthews (1990) 58 SASR 19, the other party's fear of the accused and not wanting to have anything to do with him was regarded as probative of sexual intercourse being without consent.

In the present case, whether the deceased had truly agreed to marry the accused is relevant to the accused's state of mind at the time of the alleged crime. It is relevant to the accused's reliance on provocation, the accused's case being that the deceased, being his fiancee, terminated the relationship without warning in a callous and degrading manner. It is also relevant to the defence of diminished responsibility as spelled out in Dr Canaris' report. (I need not detail that.)

On the factual issue of whether the deceased had truly agreed to marry the accused, whether she wished to do so or wished not to do so is relevant evidence. So are her thoughts and feelings about the accused and their relationship insofar as they might bear on that factual issue. That is because it would be logical to reason from the deceased not wanting to marry the accused to not having said she would. Matthews is particularly analogous, where antipathetical feelings about the accused were regarded as probative of the absence of consent to sexual intercourse.

Construction of Evidence Act 1995 , s 65(2)

Next, I need to refer to certain provisions of the Evidence Act 1995 (NSW), Part 3.2, Hearsay. Division 1, The Hearsay rule, contains s 59, which provides as follows. (The meaning of "asserted fact" may be noted.)

"59(1) Evidence of a previous representation made by a person is not

admissible to prove the existence of a fact that the

(2) Such a fact is in this Part referred to as an asserted fact."

The phrase "previous representation" is defined in the Dictionary of the Act as meaning a representation made otherwise than in the course of giving evidence in the proceedings in which evidence of the representation is sought to be adduced (in other words, an "out of court" statement).

For the purpose of Div 2, First-hand hearsay, the phrase "previous representation" is given a restricted meaning. The result is that, in Div 2, a previous representation is limited to first-hand hearsay:

"62(1) A reference in this Division (other than in subsection (2) to a

previous representation is a reference to a previous

representation that was made by a person who had personal

(2) A person has personal knowledge of the asserted fact if his or

her knowledge of the fact was, or might reasonably by supposed

to have been, based on something that the person saw, heard or

otherwise perceived, other than a previous representation made

Division 2 provides for certain exceptions to the hearsay rule. Section 65, so far as is presently material, provides as follows.

"65(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 was:

(b) made when or shortly after the asserted fact occurred and

in circumstances that make it unlikely that the representation is a fabrication; or

(c) made in circumstances that make it highly probable that

(a) oral evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or

(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation, to which it is reasonably necessary to refer in order to understand the representation.

(9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that:

(b) is given by a person who saw, heard of otherwise perceived the other representation being made."

Section 65(2)(b) prescribes two conditions for its operation. First, the representation must have been made contemporaneously with the asserted fact (that is, the fact intended to be asserted by the representation : see s 59(1)) or shortly thereafter.

The phrase "shortly after" is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to be taken into account but - as in the case of normative judgments generally - it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase "shortly after" must be the actual time that has elapsed and whether that fits the ordinary usage of the expression "shortly after" in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind.

The second condition prescribed by s 65(2)(b) is that the representation was made in circumstances that make it unlikely that the representation is a fabrication. The test is not one of reliability at large. It is a narrower test. First, it is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial. Secondly, it is not unlikelihood at large which is in question, but unlikelihood arising from the circumstances.

I would construe "circumstances" to mean the circumstances in which the representation was made, its factual setting at the time it was made. That construction has the effect of excluding from consideration, for the purposes of s 65(2)(b), events subsequent to the representation being made and other representations made by the same person on other occasions, notwithstanding that such considerations might logically fortify the unlikelihood of concoction or (in the case of inconsistent representations) have the opposite effect. The same point arises in relation to s 65(2)(c).

This construction of s 65(2)(b) and (c) is contrary to that given to the paragraph in Dean (Dunford J, 12 March 1997, unreported) and in Lock (1997) 91 A Crim R 356 at 360. I respectfully disagree with those decisions in this respect.

An argument put by the Crown in the present case demonstrates that unrestricted consideration of the unlikelihood of fabrication (s 65(2)(b)) or of reliability (s 65(2)(c)) cannot have been intended by the legislature. The argument was this. Certain of the representations in question in the present case are by the deceased, to the effect that the accused threatened to kill her. The Crown calls in aid the accused's admission that he did kill her. That fact, it is said, enhances the likelihood that the representations were not fabricated and that they are highly likely to be reliable. The same situation arose in Dean.

The argument has given rise to no serious difficulties in the present case. But what if it were seriously in dispute as to whether the accused killed the deceased? There would have to be a trial within a trial. And, in the present case, the same approach would entitle the Crown to prove that the killing was done with an intention to kill, and without provocation for that matter, all of which would be logically relevant to whether a prior representation that the accused had threatened to kill the deceased was unlikely to be a fabrication or was highly probable to be reliable. The Crown would be entitled to call virtually the whole of its case on the voir dire and the accused would be entitled not only to test it but to answer it by evidence on the voir dire. This cannot have been intended.

The same situation arises in the present case in relation to multiple representations of a threat to kill. The Crown says that if the deceased told several people that the accused had threatened to kill her, each representation fortifies the likelihood that the others are not fabrications by her and are highly probable to be reliable. So too, it is said, admissions by the accused himself of having such an intention (contemporaneous admissions to others and retrospective admissions to the police) have a similar probative value. If that approach is legitimate, the court must decide in such a case whether it accepts such other evidence, and the accused must be entitled to challenge it by cross-examination and to contradict it by giving evidence if he wishes to do so. Again, this cannot have been intended.

The legislature has restricted consideration to unlikelihood arising from the circumstances for a reason. If the legislature had intended unlikelihood to be determined at large, there would have been no mention of circumstances. The only serious question to my mind is the meaning to be given to the phrase "the circumstances". I have stated my opinion as to that.

Section 65(9)

The Crown has invoked s 65(9). It is said that the accused will give evidence along the lines of the history taken by Dr Canaris. That, it is said, will include evidence of representations made by the deceased about the relationship, which would entitle the Crown to call other evidence of representations by the deceased about the relationship. The Crown would wish to do that in its own case, rather than in reply, either because it would be bound to do so or because as a matter of fairness it should, as was done in Mrish (Hidden J, 4 October 1996, unreported). Counsel for the accused agreed that, if the Crown would have an entitlement to call such evidence under s 65(9) following evidence by the accused, it should do so in its own case. But an entitlement to call such evidence pursuant to s65(9), assuming the accused's evidence to be as anticipated, is disputed by the accused.

I think there is a serious question about the phrase "the matter". A liberal construction would allow evidence in this case of any relevant representation by the deceased about the relationship. A narrower construction would confine "the matter" to the factual aspect of the relationship which was the subject of a representation adduced by the accused, or perhaps to the issue in the proceedings to which such a representation related.

In the present case, however, there is a specific element in the anticipated evidence to be led from the accused. That is that the deceased had agreed to marry him. That will be evidence of a representation by the deceased. The consequence is that the Crown will be entitled to lead evidence of other representations by the deceased which bear upon that matter, whatever wider effect s 65(9) might have in other circumstances.

In view of the agreement that any such entitlement should be exercised by calling the evidence in the Crown's case, rather than in reply, evidence will be allowed pursuant to s 65(9) that is relevant to whether the deceased agreed to marry the accused. That will include evidence of representations by the deceased that she did not wish to marry the accused and that she was not interested in a serious relationship with him.

In the rulings which follow, I have not decided any question as to the form of the evidence. It will be a matter for the discretion of counsel - as it ordinarily is - as to what, if any, objections should be taken as to form. If further evidence has to be taken on the voir dire to resolve any such objection, that will be done.

It is also possible that some of the evidence will be adduced by the Crown in a different form to that which appears in the statements or has been given orally on the voir dire. I would expect the accused's counsel to be given notice of any significant variation.

The evidence objected to falls into two broad categories: threats by the accused to kill the deceased (made by the accused to the deceased or to others) and evidence concerning the relationship between the accused and the deceased apart from the alleged threats. It is convenient to refer to these strands of evidence as "threats" and "relationship".

This was the first witness called on the voir dire. His statement was tendered and he was examined orally.

The deceased was Mr Pierce's stepsister. They had been raised together from an early age. They had a close relationship. In adulthood, they had remained closely in touch with each other.

On 15 March 1997 Mr Pierce was staying overnight with the deceased. That was 10 days before the deceased was killed. Mr Pierce witnessed the deceased having a telephone conversation.

The following paragraphs of Mr Pierce's statement are objected to:

"4. Helena returned to Australia from Europe in January 1997 and started working as a waitress in an Indian Restaurant about 1 week later. About 3 weeks later she told me that another employee of the restaurant liked her and was calling her at night. She told me that this man was Indian. Not long after this she told me that the restaurant owner had sacked her because she was becoming close to other staff.

5. About 2 or 3 weeks after she was sacked I was talking to her on the telephone. She told me that she was going to the Blue Mountains with the Indian guy, Kumar, and asked me not to tell anyone. About a week later she told me that she was in a relationship with him.

6. On Saturday the 15 March 1997 I was staying at Helena's unit. We were home all evening and Shane, Helena's flatmate, was also there. About midnight the telephone rang. Helena answered the phone and there appeared to be no-one on the other end. This happened about 6 times and Helena then pulled the plug out of the wall. Earlier in the evening she had told me that it was Kumar's birthday and that she had forgotten to ring him.

7. About 7 or 8 o'clock the next morning I again heard the telephone ring. Helena answered the phone. She said something like `What's up?' I did not hear what the other person said. She said a number of times `What did I do to you?' or words to that effect. She also said `Is it because I didn't ring you on your birthday?'

8. The phone call lasted about 5 minutes. At the end of the telephone call she told me that Kumar was the person on the other end of the phone. She said that he had called her a slut and a whore and said `I will kill you.' She was not concerned at this and said something like `He gets mad sometimes but he never does anything."

The evidence in the statement includes direct evidence of what the witness saw and heard. That was direct evidence that the relationship was seriously tense at that stage, some 10 days before the deceased's death and at a time when the accused will say that it was not. The evidence is relevant.

The hearsay elements in the witness' account are the deceased's representation that it was the accused on the phone and the statement attributed by her to him by way of threat.

I would allow the evidence under s 65(2)(b). The representations were made shortly after the event. The circumstances include the content of the representation and the close association between the deceased and the witness.

The fact that the deceased said, in effect, that she did not take the threat seriously does not suggest to me, as was submitted, that this cast doubt on the truthfulness of the representation. I am satisfied that the circumstances make it unlikely that the representation was a fabrication.

I would not exclude the evidence under s 135 or s 137. The accused suffers the prejudice of not being able to test the representation by cross-examination of the maker. On the other hand, he is in a position to meet the evidence by denial or explanation. There is a risk that such evidence might be used by the jury as evidence of a tendency to violence, a use which the Crown forswears. I am satisfied, however, that the probative value of the evidence outweighs any such prejudice, with or without a warning to the jury not to use the evidence as evidence of tendency.

Counsel for the accused is apprehensive about such a warning being given to the jury. I would be willing to give such a warning if it is sought by the accused and I might decide to do so anyway, but I would hear counsel further before doing so. This applies equally to other evidence about threats to kill. There is no need for me to make the same point each time.

As a subsidiary position, counsel for the accused asked for a ruling that the disputed relationship evidence should be limited under s 136 to evidence of what the deceased said rather than evidence of the truth of what was said. I see no occasion for acceding to that request.

In his oral evidence, Mr Pierce said the deceased told him, in connection with the trip to the Blue Mountains, that she and the accused did not get on very well, that they had had arguments.

I relate this evidence to para 5 of the witness' statement. Assuming Mr Pierce was speaking in his oral evidence of a conversation with the deceased within a week or so of the trip to the Blue Mountains I would allow this evidence under s 65(2)(b) if it is objected to.

Mr Gloc was a friend of the deceased. He was a longer term employee of Mr Singh. (The deceased and the accused met at Mr Singh's restaurant as employees.)

About two weeks before the deceased's death he had moved in with the deceased as flatmates.

In his statement and oral evidence, he spoke of his own observations of the relationship between the deceased and the accused and of conversations with the accused. No objection was taken to that evidence.

Objection was taken to the last sentence of para 5 of the witness' statement. I quote the whole of para 5, for context.

"About two weeks ago I moved into my present home with Helena as flatmates. During that time I saw that there was constant problems between Helena and Kumar. He would come and visit frequently and he would telephone her everyday at least five times. The conversations were mainly one way with Kumar doing all the talking. Helena told me that Kumar was persistently trying to get her to have a serious relationship with her, however she did not want to commit herself in that way although she wanted him as a friend."

There was oral evidence concerning the relationship but nothing presently material.

I would admit evidence along the lines of the first part of the sentence, pursuant to s 65(2)(b). As to the time frame, Mr Gloc's evidence places the relevant representation or representations to him by the deceased as having occurred in the period commencing about two weeks before her death and 21 March 1997. (He said in his oral evidence that he did not speak to her after 21 March 1997.) The relationship commenced at about Christmas 1996 at the earliest. So the deceased was speaking of an ongoing situation, current at the time of speaking to Mr Gloc, albeit going back possibly for as long as three months. I would be satisfied that, in these circumstances, the representation was made shortly after the asserted facts within the meaning of s 65(2)(b).

As to the second limb of s 65(2)(b), the relevant circumstances set the representation in the context of a conversation between flatmates who were good friends. I would be satisfied that the circumstances made it unlikely that the representation was fabricated.

I would allow the second part of the disputed sentence (commencing with the word "however" pursuant to s 65(9). The reasons for that decision appear in the earlier section of this judgment in which the subsection is discussed.

It may be noted that s 65(9) does not contain conditions such as appear in paras (b) and (c) of s 65(2). However, in this instance the conditions of s 65(2)(b) are in fact satisfied, for the same reasons as apply to the first part of the disputed sentence. The Crown is entitled to anticipate evidence to be adduced by the accused and adduce in its own case relevant evidence which tends to negate what the accused will say. Accordingly, the second part of the disputed sentence is admissible under s 65(2)(b) as well as s 65(9).

I am satisfied that the probative value of the evidence outweighs any danger of unfair prejudice to the accused. I would not exclude the evidence under s 135 or s 137, nor limit its use under s 136.

Mr Gloc also gave evidence concerning threats by the accused which was objected to. Para 6 of his statement is as follows.

"I think that some time over the past two weeks she told me that Kumar had threatened to kill her and also threatened to kill himself. She did not take this seriously."

In his oral evidence, Mr Gloc said he was pretty sure about the threat by the accused to kill himself, but was not sure about the threat to kill the deceased. It may be assumed that the witness' evidence, if called at the trial, would be the same.

There are serious problems about the operation of s 65(2) in relation to this evidence. There is no time frame for the purposes of s 65(2)(b). The asserted fact could have been three months or so before the representation. Whether the high standard of satisfaction set by s 65(2)(c) is met must be doubtful. The operation of s 65(9) is doubtful.

It is unnecessary to resolve these questions. I would disallow the evidence under s 137. There is the prejudice that the accused cannot test the representation by cross-examination. There is the low probative value of the evidence in view of the witness' uncertainty as to whether the representation was made. I am satisfied that the risk of unfair prejudice outweighs the probative value of the evidence.

The accused objects to the evidence in para 6 of Mr Hannah's statement.

"In early February, 1997 I met up with Helena at Kung Fu training at Avalon. I had a conversation with Helena which went along the lines of that she was having problems with her new boyfriend. She told me that he was very possessive and wanted to marry her. She told me that she did not want a commitment and only wanted a friendship type of relationship."

Mr Hannah's oral evidence otherwise added nothing of present relevance.

Mr Hannah was a good friend of the deceased. Since early 1995, he had trained regularly with her at kung-fu.

The evidence objected to is similar to the relationship evidence which the Crown wishes to adduce from Mr Gloc. The same considerations arise. Conformably, I would allow the evidence.

Objection was taken to paras 6 and 7 of Mr Allertz's statement-

"6. About four weeks ago I was talking with Helena and she told me that there had been trouble at the restaurant between the owner and her boyfriend. The boyfriend was sacked and he needed another sponsor or he had to get married to stay in the country. Because of these troubles Helena also left working at the restaurant. She told me her boyfriend wanted her to marry him and that he would support her. She had told him that she wasn't that serious and she had tried on many occasions to end their association however he persisted in harassing her by telephoning her and coming to her unit. She said that they had gone to see a solicitor in the City at one time to try and find a way he could stay in the country.

7. About a week ago Helena told me that this guy had threatened to kill her two or three weeks ago if she left him. He had told her that he loved her and that he couldn't live without her. When Helena told me this she gave the impression that she did not think he would carry out this threat."

Mr Allertz had had a relationship with the deceased for about 13 months ending May or June 1996. She then went abroad. When she returned, in November 1996, the relationship was not resumed, but they remained close friends. They spoke frequently on the telephone and saw each other at weekends. He had visited her at her flat.

His oral evidence included evidence that, as far as he was aware, the deceased enjoyed the accused's company but was not willing to move into a serious relationship with him; she was not interested in marrying him. Later, she told him that the only way the accused could stay in Australia was to marry, that she did not want to marry him, and that she had been trying to end the relationship without success.

As to para 6 of the statement, I do not think the first three sentences are objected to. The balance of the paragraph is objected to.

I would allow that evidence, for the same reasons as applied in the case of Mr Gloc. The evidence is admissible under s 65(9). It is also admissible under s 65(2)(b). The representation related to an ongoing situation and was therefore made shortly after the matters represented. The circumstances make it unlikely that the representation was a fabrication. For the reasons which appear later in connection with para 7 of the statement, I am also satisfied that the conditions of s 65(2)(c) are met. There is not the same compelling subject matter as a death threat but the other considerations I mention there are sufficient.

I now come to this witness' evidence of a threat to kill contained in para 7 of the witness' statement.

In his oral evidence, Mr Allertz was unsure about whether there were one or two conversations with the deceased which included reference to a threat to kill her. He said there was one conversation at her flat about a week before her death and possibly an earlier one on the telephone a week or two before that.

More importantly, he was referred to the passage in his statement where he said the deceased had placed the threat at "two or three weeks ago", that is, two or three weeks before Mr Allertz made his statement on 25 March 1997. He said, in effect, that that was a mistake in the statement. As best he could say, the death threat had occurred between the accused being fired from the restaurant and two or three weeks before he spoke to the deceased. But that had the tenor of being an inference by the witness from the history of the relationship as he understood it, rather than being evidence of anything stated by the deceased.

I would have to assume, in these circumstances, that Mr Allertz's evidence on this point would not be in accordance with his statement, and that he would not attribute any dating of the threat to the deceased. That would mean that the threat of which the deceased spoke could have occurred as long as three months or so prior to her representation to Mr Allertz concerning the threat. That precludes recourse to s 65(2)(b).

For the purpose of s 65(2)(c), I need to fill out the circumstances of the conversation at the flat in which the representation was made. It lasted about two hours. The witness said that the deceased did not appear to be particularly worried about the death threat. She appeared to be worried about the accused's situation in having been unable to find a way of remaining in Australia. This was an earnest discussion with a close friend about a person for whom the deceased cared and whom she wanted very much to assist.

I am satisfied that these circumstances make it highly probable that the representation was reliable. The occasion was not one of levity. It was a serious discussion, with the deceased having the accused's welfare at heart. Then there is the subject matter of the representation. A death threat is not something one is likely to be mistaken about or not remember accurately. It would be extraordinary if, in these circumstances, the representation were incorrect. Section 65(2)(c) therefore operates to make this evidence admissible.

Mr Allertz' evidence is of high probative value. I am satisfied that its probative value is not outweighed by any unfair prejudice to the accused. The evidence will not therefore be excluded under s 135 or s 137. I see no occasion to limit its use under s 136, same as to tendency.

She is the wife of the proprietor of the restaurant where the accused and the deceased worked and met.

The evidence objected to appears in para 5 of her statement-

"5. About 6 weeks, Andy sacked Kumar because he had a bad temper and a bad mouth to Andy. Just before that, Kumar said to me one day, "Crystal, what do you think about Helena" I said, "She's OK." He said, "There's something about her. She's always hugging and kissing men and I don't like it. I can't stand it. I can't cope with it. What do you think I should do?" I said, "If you're going to get all tense about something like that, what are you going to do if she is ever unfaithful to you?" He said "Kill her." I thought it was a joke and didn't think anymore about it."

Her oral evidence on this score was not materially different. She said that in giving the last answer to her, the accused did not seem serious, but she conveyed that he spoke in a normally modulated voice. A possible implication was that her assessment at the time arose from the improbability that the accused could be serious rather than from the way in which he spoke.

Counsel for the accused submitted that this evidence should be rejected because the accused's statement was in hypothetical terms. I do not think that is a valid objection. A statement of intention may be qualified in some way and still be relevant. For example, "If I can get hold of a gun, I will shoot her", or "If she does not change her ways, I will shoot her." Such statements go to the accused's state of mind. Relevance may depend on what then happened. In the present case, it seems to me that the statement is evidence of premeditation of a kind. As such, it is relevant to intention to kill, and to negate provocation and diminished responsibility. Whether the statement by the accused should be so received, rather than seen as conversational hyperbole, is a jury question.

I am satisfied that any prejudice to the accused is outweighed by the probative value of the evidence. I would therefore not exclude the evidence under s 135 or s 137.

Objection was taken to the evidence in parts of paras 4 and 6 of his statement. Those parts are as follows-

"4. ....I remember Helena saying to me that she only liked Kumar as a friend and did not want anything serious with him. Kumar used to tell the other staff that he was in love with Helena and that they had slept together. Helena never said that they had slept together.

6. ....I did not know a lot about their private life but I remember that Kumar once said to me in about January this year, `She's a bitch I'll cut her up and throw her in the Ocean.'

The conversation at this time was about Kumars relationship with Helena and the cultural differences between Australia and India. I had warned Helena about Kumar because I was concerned about Kumars feelings towards Helena. Kumar was possessive over Helena he had only know her for a few weeks which I thought was not a good thing for Helena."

I am not sure if objection is taken to the last two sentences of para 6.

So far as is disclosed by Mr Singh's evidence, the representation by the deceased recorded in para 4 of his statement would have been made before the deceased's employment was terminated in January 1997. That the deceased was not then interested in a serious relationship is either not probative at all or of very little probative value on the issue as to whether the deceased had agreed to marry the accused at a later stage.

If the third last and last sentences in para 4 are admissible, I would disallow them under s 137.

Evidence in para 4 relating to statements by the accused is not objectionable on grounds of relevance. It is not clear whether Mr Singh is able to give direct evidence of such statements. That may have to be resolved.

In his oral evidence, Mr Singh gave the context of the conversation with the accused which appears in para 6. He said he explained to the accused that in Australia men cannot control women and that it was acceptable for a woman to go out with more than one man. The accused had replied, "If that bitch, if she does that I will cut her up and throw her in the ocean." Mr Singh took the "if" to mean "if she cheated him, or if she leaves him, or something in that context."

Mr Singh said in his oral evidence that he took the accused's response as a joke because he did not know the accused meant it.

I cannot know how much of this would be led at the trial, or indeed whether Mr Singh's account of his conversation with the accused might not be filled out further. (There are further snippets of conversation in Mr Singh's oral evidence on the voir dire.) On the evidence as it stands, it is not clear as to precisely what eventuality the accused had in mind when he allegedly said "If that bitch". However, irrespective of these nuances, Mr Singh will apparently give an account of a conversation with the accused, which would provide the basis for a finding that the accused had killing the deceased in mind if she behaved in a way which was seriously unacceptable to him.

Whether the evidence should be so received, as distinct from being conversational hyperbole, is again a jury question.

Precisely what eventuality or eventualities the accused allegedly had in mind may affect the weight to be given to the evidence, but evidence of the accused having contemplated killing the deceased for untoward behaviour of any kind is relevant evidence and should be admitted. I have earlier explained how I see the relevance of such evidence.

I am satisfied that the probative value of the evidence concerning this conversation outweighs any prejudice to the accused arising from possible use of the evidence by the jury as evidence of tendency. The evidence of the conversation will therefore not be excluded under s 135 or s 137. I make the same observation as previously concerning a warning or instruction to the jury limiting the use of the evidence.

As to the last two sentences of para 6, I am not sure, as I have said, whether there is an objection. If there is, my ruling would be that evidence of things said by Mr Singh to the deceased is not admissible as evidence. But the accused might want this evidence to be let in. The last two sentences in para 6 may involve a problem about form which is not my present concern.

There is annexed to this judgment a table summarising these rulings.

I believe I have ruled on all the evidence objected to. Counsel should check, however, that I have done so. It would be best to deal with any such omission before the hearing commences, but that is not essential. If something is missed it can be dealt with later in the trial.

Oral evidence re arguments etc on Blue Mountains trip if related to para 5.

The same, para 6, from "I did not know a lot ..." to "...between Australia and India."

The same, para 6, last two sentences (if objected to).