The Queen v Lual [2015] VSC 201

Supreme Court of Victoria|2015-05-08|Before: T FORREST J

HEARSAY RULE - Section 59 Evidence Act 2008 - Exceptions to the hearsay rule - Whether unfair prejudice outweighs probative value of representations - s 65(2)(b), s 65(2)(c),s 66A and s 137 of the Evidence Act 2008.

2 The prosecution seek to lead a body of relationship evidence said to cover the period after the couple arrived in Australia from Sudan in 2005, and extending up to Ms Oghia's death. Some of this relationship evidence is in a hearsay form.

3 The prosecution have served a hearsay notice specifying nine previous representations made by Suzy Oghia to various members of the Australian-Sudanese community. The defence objects to the introduction of most of this evidence on the basis that the previous representation cannot be saved by any exception to the general hearsay prohibition,[1] or, alternatively, (in some cases) s 137 of the Act ought operate to exclude the impugned representation on the basis that the danger of unfair prejudice to the accused outweighs the probative value of the evidence.

4 I here reproduce the hearsay notice in full. After dealing with the relevant legal principles I shall set out as much factual background as is necessary and shall then consider each representation individually.

1. Suzi said that the accused had hit her when she returned to the home having been out on a walk

Representation made by the deceased during conversation with Christine Liwa in respect of an injury she had to face.

2. Suzi said that the accused had hit her during the course of a fight which occurred because he thought she was seeing another man. She had taken her baby to the park because the house was hot. Later that night, the accused had hit her because he thought she was in the company of another man.

Representations made by the deceased during conversation with Diana Guarang in respect of an injury she had to her face

3. Suzi told Diana Guarang that she had spoken to the accused on the phone. He had told her that he knew about men who were in gaol for having killed their wives. In gaol, they were very happy because of the conditions. Suzi asked Diana if she thought this statement by the accused meant he was going to come and kill her. Guarang reassured Suzi.

Representations made by the deceased during conversation with Diana Guarang

4. Suzie told Election Majilakwa that on the night of the accused's return from Brisbane she had not permitted him to sleep in the bedroom with her and had made him sleep in another bedroom. She had said she did not want him to come near her.

Representations made by the deceased during conversation with Election Majilakwa

5. After the accused moved in with Martin Ohuchol in September 2013, Suzie told Majilakwa that the accused was following her everywhere.

Representation made by the deceased during conversation with Election Majilakwa

6. Suzie came to the home of Majilakwa and told him that the accused had told her he was coming to kill her and kill whatever guy she was seeing. Suzie said to Majilakwa that she did not have another man and never would. She said she was not going back with the accused anymore.

Representations made by the deceased during conversation with Election Majilakwa

7. Suzie said that the accused was coming to her house at night time, causing her to think he was looking to see if another man was there.

Representations made by the deceased during conversation with Election Majilakwa

8. Suzie said that she could not take the accused back home because of his behaviour before.

Representation made by the deceased during conversation with Martin Ohuchol

9. On the morning after the arrival of the accused at the home of Suzie and the children from Brisbane, Suzie said to her children that she had kicked the accused out of the house.

Representation made by the deceased during conversation with Amanuel Lual.

5 The evidence must be relevant to facts in issue in the trial. It will be relevant if it assists the jury in choosing between alternative explanations.[2] It is sufficient if the related incident makes a contribution which is not insignificant or insubstantial to a climate of antipathy.[3] If the incident is isolated and at a considerable time before the death, it may afford no evidence at all of relations between the parties at the time of the death.[4] If it is not too remote, and its existence along with other incidents or circumstances related in evidence tends to establish a climate of antipathy, it is relevant.[5] This type of evidence is traditionally admitted to prove motive, or to establish the intent of the accused at the time the alleged act occurred.[6] The idea that there must necessarily be more than one event in a relationship as a precondition to admissibility does not accord with principle and is unsupported by authority.[7]

6 The prosecution seek to lead the impugned hearsay evidence through one or more of the gateways of s 65(2)(b) , s 65(2)(c) and s 66A of the Act.

7 Generally evidence of a previous representation is inadmissible if it is led to prove the existence of a fact apparently intentionally asserted within the representation.[8] This general rule is subject to a number of exceptions, some of which apply to the criminal trial context. If the previous representation is "first hand"[9] and if the maker of the representation is not available then the hearsay rule will not apply if the representation:

(a) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication (s 65(2)(b)); or

(b) was made in circumstances that make it highly probable that the representation is reliable (s 65(2)(c)).

8 Section 66A provides an exception to the general rule where the evidence concerns a previous representation made by a person if the representation was a contemporaneous expression of the person's health, feelings, sensations, intentions, knowledge or state of mind.

9 Any consideration of the probative value of each piece of impugned evidence must occur in the context of all the other related evidence in the case. The prosecution reasonably expects that the relationship evidence, in total, will demonstrate:

• the relationship between the accused and the deceased was a troubled one for many years leading up to her death;

• the accused man and the deceased separated for some years during which time the accused lived in Queensland;

• the accused returned to Melbourne about two months before the events in question and sought to move back in with the deceased and his children, in which ambition he was rebuffed by the deceased;

• the accused was very unhappy about not being permitted to remain in the family home;

• one feature over many years of the relationship was the seemingly jealous behaviour and feelings of the accused in respect of the deceased;

• on at least one occasion the accused was physically violent towards the deceased as a direct result of his suspicions that she may be seeing another man;[10]

• in the months leading up to the killings, the accused suspected that the deceased was seeing another man;

• the accused stated to the deceased and to a friend of hers that if he found out she was seeing another man he would kill the deceased and the other man;[11]

• in the months leading up to the killing, the accused was following the deceased[12] and sought to monitor the movements of the deceased, including with the assistance of their child Amanuel;[13]

• the deceased had made it clear to the accused that although he was permitted to attend at her home and see their children and elsewhere, he was not permitted to attend the home at night time;

• in the months leading up to the killing, the accused harboured much animosity towards the deceased due to her refusal to permit him to return to the family home and the suspicions the accused had as to her conduct;

• at the time of her death, the deceased was scared of the accused, and frightened that he would kill her.

10 It is anticipated that this evidence will come from Christina Liwa (p 114 of the depositions), Diana Guarang (p 120), Andrea Lual (p 126), Election Majilakwa (p 131), Martin Ohuchol (p 150) and Amanuel Lual (p 652).

No.1 "Suzy said the accused had hit her when she returned to the house, having been out on a walk. He had asked her where she had been and then got angry and hit her". Christina Liwa

No.2 "Suzy said that the accused had hit her during the course of a fight, which occurred because he thought she was seeing another man. She had taken the baby to the park because the house was hot. Later that night, the accused had hit her because he thought she was in the company of another man". Diana Guarang.

11 Both women observed an injury to Ms Oghia's left upper face and both representations were made in the context of discussing that injury. I think it likely that both representations were made in the context of discussing the one injury. Both described the conversation as occurring at roughly the same time period and the injury described by both witnesses was similar. I consider both representations, when considered with the other relationship evidence in the case, are highly probative of a climate of antipathy control and possessiveness within the relationship. The injury was sufficiently fresh for Christina Liwa to describe it as "...(i)t is bloody, red and the skin is off", "(it) wasn't bleeding but the skin is off."[14] "(It was) not that old, like yesterday."[15] Diana Guarang described it as "...a new- new wound"[16]. The representations concern an event that assertedly occurred after the deceased had left the house without the accused. His physical reaction and his suspicions bear directly on the nature of the relationship. The evidence derives support from other evidence of jealousy and possessiveness and, in turn, supports that evidence.

12 I consider that representations 1 and 2 were made shortly after the asserted fact occurred. The asserted fact in both representations is that the accused struck the deceased to the left side of the face. Whether the women were describing one assault or two is not important - what is important is that both women describe a fresh injury. I have set out this evidence. The circumstances of each conversation also make it unlikely, in my view, that the representations in either of them were fabrications. Both conversations occurred between the deceased and close friends and were initiated by enquiries about the visible injury. The Guarang conversation occurred at church; the Liwa conversation in the car park of the church. For these reasons, I consider that both representations 1 and 2 come within the s 65(2) exception. The representations were made while the injury was fresh and the event the subject of that representation must, by its nature and its timing, still have been clear in the mind of Suzy Oghia. The nature of the injury, the timing of the representations and the other admissible evidence of the relationship also lead me to conclude that it is highly unlikely that either Oghia account is a concoction.

13 Although it is strictly unnecessary to consider s 65(2)(c) insofar as Representations 1 and 2 are concerned, essentially for the same reasons, I am positively satisfied that the representations were made in circumstances that make it highly probable that the representations were reliable. It follows that were s 65(2)(b) not engaged for some reason, I would have admitted the evidence through the gateway of s 65(2)(c), subject to the s 137 objection.

14 I have already set out what I consider to be the probative value of representations 1 and 2 and their surrounding circumstances. I accept that there is some danger of unfair prejudice if the evidence is admitted. A jury could reason impermissibly that the accused man's violent disposition or propensities made it more likely that he would plunge a large knife 13cm into his unarmed wife's abdomen. This danger is always present when an act or acts of prior violence are admitted into evidence for non-tendency purposes. The danger can often by ameliorated to an acceptable level by direction and, in my view, this is such a case. I ought also add that the violence exhibited by one or perhaps two blows directed at Suzy Oghia at least two and a half years before her death is not, in my view of an extent or nature that is likely to lead to impermissible tendency reasoning at any event. To the extent that any prejudice may arise from the fact that representations 1 and 2 are contained within hearsay statements I accept that there is some danger of unfair prejudice that arises from the fact that the maker of the representations is unavailable and cannot be tested on those representations. This danger can be ameliorated but not extinguished by direction. As I have said I am of the view that both representations are highly probative of a climate of antipathy within the relationship. In my view the danger of unfair prejudice does not outweigh the probative value of both representations and propose to permit the prosecution to lead this evidence.

15 "Suzy told Diana Guarang that she had spoken to the accused on the phone. He had told her that he knew about men who were in gaol for having killed their wives. In gaol, they were very happy because of the conditions. Suzi asked Diana if she thought this statement by the accused meant he was going to come and kill her. Guarang reassured Suzi." Diana Guarang.

16 The prosecution characterise this representation as a veiled threat by the accused to the deceased. In my view, it is capable of this interpretation, particularly given the other more direct evidence of similar threats. It is not hearsay because it is led for a non-hearsay purpose. It is not led to establish the existence of any asserted fact within the representation. It is led by the prosecution to establish the fact that the accused had impliedly threatened Ms Oghia in this way, and also to establish that she feared the accused and thus was unlikely to have invited the accused into her house at 1.15am on 5 November 2013.

17 Mr Barns confined his submissions to s 137. He argued a) that the jury may reason that the accused associates with murderers, and b) that the statement is sufficiently oblique so as not to be capable of being viewed by the jury as a threat. He also submitted that its probative value is diminished by uncertainty about the timing of Ms Oghia's statements.

18 I consider that I ought permit most of this representation to be led. As I have indicated, I am of the view that Ms Oghia's account of her husband's remarks is well capable of being considered a veiled threat, particularly when viewed in conjunction with other more direct threats that were recounted by Suzy Oghia to others. I consider this evidence has a high probative value in the prosecution case. I doubt that the statement is as oblique as Mr Barns contends, and whilst Ms Guarang's timing can be no more accurate than "sometime in 2012" there is a continuity about the totality of the relationship evidence that means this statement, whilst old, is far from isolated. In my view, the statement does not convey that Mr Lual associates with wife killers. I consider a strong direction as to how this evidence (together with other similar relationship evidence) may be used will be sufficient to ameliorate, to an acceptable level, any prejudice said to arise from its admission. I propose to admit representation 3, save for this passage: "Suzi asked Diana if she thought this statement by the accused meant he was going to come and kill her. Guarang reassured Suzi." I am unsure whether this remark by Ms Oghia is an expression of fear, or merely speculation on her part about what Mr Lual may have meant by his statement. I will not permit it to be led as, if it is no more than a speculative query, it has little probative value and is, in effect, a tacit invitation to the jury to speculate in the same way.

19 I propose to permit the prosecution to lead all but the last two sentences of representation 3.

20 The defence concede this representation is admissible.

21 "After the accused moved in with Martin Ohuchol in September 2013, Suzie told Election Majilakwa that the accused was following her everywhere" Election Majilakwa.

22 In discussion, Mr Barns conceded that this representation was admissible. I consider this concession was well made. The asserted fact is that the accused was following Suzie Oghia in September 2013. The deceased was talking to a close friend about a continuing event. There is every reason why the statement would be a truthful one and no reason why it would not be so. In my view, the hearsay representation is admissible through the gateways of s 65(2)(b) and (c).

23 I propose to permit the prosecution to lead representation 5.

24 "Suzie came to the home of Election Majilakwa and told him that the accused had told her that he was coming to kill her and kill whatever guy she was seeing. Suzie said to Majilakwa that she did not have another man and never would. She said she was not going back with the accused anymore." Election Majilakwa.

25 There are three previous representations in representation 6:

(a) the accused said he was going to kill her and whatever guy she was seeing;

26 There was some debate as to whether previous representation (a) is a hearsay statement. In written submissions, Mr Tinney contended that it was such a statement and argued in the circumstances it was highly probable that the representation was reliable. He further contended that it was admissible through s 65(2)(b) and (c). Mr Barns also contended that this was a hearsay statement and thus covered by the exclusionary rule, but argued neither s 65(2)(b) nor (c) were engaged. According to Majilakwa, Suzy told him that this threatening conversation between her and the accused occurred after the accused moved back to Melbourne from Brisbane (i.e. some time after August 2013). Mr Majilakwa went on to say that Suzy told him of this conversation about one month before she died. I expressed some reservations about whether previous representation (a) is in fact a hearsay statement although it is clear enough that representation (b) is - the purpose in leading it is to establish the asserted fact within that representation - namely that Suzy did not have another man. I also have reservations about whether (c) is a hearsay statement.

27 I doubt whether the threat to kill the deceased (previous representation (a)) is in fact a hearsay statement. It is sought to be led by the prosecution to prove the fact that the threat was made, not to prove the truth of any asserted fact within the representation and is thus original evidence. Similarly, I have some reservations as to whether the assertion by Suzy Oghia that she was not going back with the accused is a hearsay statement (previous representation (c)). It is no more than a statement of her intentions, and as such does not seem to contain any asserted fact.

28 Notwithstanding this, I propose to adopt a cautious approach and assume that all three previous representations within representation 6 are hearsay statements. Certainly s 66A of the Act contemplates that previous contemporaneous representations of feelings, intentions and the like are hearsay statements, although this does not seem to accord with the usual common law approach to regard such representations as original evidence.

29 Accepting that the exclusionary rule applies to all three of these statements I am of the view that s 65(2)(c) operates to except previous representations (a) and (b) above from the operation of that exclusionary rule and that s 66A operates to except previous representation (c).

30 Representations (a) and (b) were made to Election Majilakwa at Majilakwa's house. Suzy Oghia, as I have observed earlier, was a close friend of Majilakwa. She had gone to his house, it seems, about one month before she died in order to seek his counsel and comfort: "She was crying when she was talking".[17] I consider that the entirety of representation 6 was made in circumstances that make it highly probable that the contents of all three representations are reliable. There is no suggestion either participant was affected by alcohol or any other substance. Mr Majilakwa's wife was present and the deceased's friend, Mary Free, was also present. I consider it highly probable that Suzy Oghia was truthfully recounting the current status of her relationship with her husband. I cannot conceive of a sensible reason why, in those circumstances, Suzy Oghia would lie or be otherwise unreliable about those matters. I consider, therefore, that previous representations (a) and (b) come within s 65(2)(c). Previous representation (c) as part of representation 6 can also fit through the s 65(2)(c) gateway, but more comfortably fits within the s 66A exception. The statement to the effect of "I won't have him back" is an obvious contemporaneous expression of intention.

31 Alternatively, Mr Barns submitted that s 137 ought be engaged to exclude the whole of the impugned representation 6. I do not accept this submission. Where an accused utters a threat to kill his estranged wife one month before he undisputedly does exactly that, the probative value is obviously significant. Mr Barns directed me to the danger of unfair prejudice arising from impermissible propensity reasoning, "namely if the defendant made this sort of threat he is the sort of person who was likely to have had the requisite intent (for murder)". The prosecution seek to lead this as relationship evidence and not as direct evidence of intent. In my view, there is some danger of impermissible tendency reasoning, as identified by Mr Barns, but I consider it can be adequately dealt with by direction. I also consider that the forensic disadvantage of the representations being conveyed in a hearsay form can, to some extent, be dealt with by a hearsay direction. I consider the probative value of this evidence very comfortably outweighs any residual post-direction prejudice.

32 I propose to permit the prosecution to lead all three components of representation 6.

33 "Suzy said the accused was coming to her house at night time, causing her to think he was looking to see if another man was there". Election Majilakwa.

34 This representation was made by Suzi Oghia to Election Majilakwa, also about one month before her death. The first component to the representation is clearly hearsay - the prosecution seek to lead the evidence to prove the asserted fact that the accused was coming to the deceased's house at night time. The prosecution, when pressed, did not seek to lead evidence of the second component - that Suzy thought he was looking to see if the other man was there.

35 The representation speaks of a continuing course of conduct and thus the representation (that he was coming to the house at night time) was made 'when or shortly after' the asserted fact occurred. As I have observed, Mr Majilakwa and Suzy Oghia were close friends and had been so for many years. There is no suggestion that either were affected by substances and the flavour of the entire conversation[18] again is that Suzy Oghia was seeking Mr Majilakwa's counsel. He advised her to change the locks. I consider that it is unlikely that the representation is a fabrication: the conversation makes no sense if it is. For these reasons I am satisfied that the exception in s 65(2)(b) is engaged. I suspect, also, without deciding it, that s 65(2)(c) is engaged.

36 Mr Barns argued that the probative value of the evidence was diminished by the fact that there was evidence that his client had some apparent licence to attend at the house and visit his children. Mr Tinney sought to counter this by submitting that if a particular witness swore up in his statement the prosecution would be able to prove that there was a 4.00pm cut-out to this licence.

37 I consider there is some real probative value in the representation. It is part of the circumstantial case the prosecution seek to prove of controlling, suspicious, stalking-type conduct leading up to the death.

38 I cannot discern any danger of unfair prejudice beyond the fact that the representation is contained within a hearsay statement. This can be dealt with by direction.

39 I propose to permit the prosecution to lead the first part of representation 7.

40 "Suzy said to Martin Ohuchol that she could not take the accused home because of his behaviour before." Martin Ohuchol.

41 This representation was made to Martin Ohuchol after he interceded on the accused's behalf (and at his request) and asked Suzi Oghia to take Mr Lual back. This conversation took place in about September 2013 after the accused had returned to Melbourne from Brisbane.

42 Mr Barns did not press this objection. Once again I doubt that the statement actually contains an asserted fact, as contemplated by the exclusionary rule but, accepting for a moment that is does, s 66A operates to except this representation from that rule. The previous representation is clearly a contemporaneous expression by Suzy Oghia of an intention or state of mind.

43 I propose to permit the prosecution to lead representation 8.

"On the morning after the arrival of the accused at the home of Suzie and the children from Brisbane, Suzie said to her children that she had kicked the accused out of the house". Amanuel Lual.

44 Mr Barns conceded that this evidence was admissible. I consider this concession was well made. The previous representation was made either at the time of or shortly after Ms Oghia ejected Mr Lual from the house. It is highly unlikely that Ms Oghia would have misled her children on this issue. I consider the previous representation to be admissible through s 65(2)(b) and (c).

[1] Section 59 Evidence Act 2009.

[2] Wilson v R [1970] HCA 17; (1970) 123 CLR 334, 339 and 344.

[3] R v Luliano [1971] VicRp 50; [1971] VR 412, 416.

[6] R v Anderson [2000] VSCA 16; (2000) 1 VR 1, 12 [30].

[7] Ellis v R [2010] VSCA 302; (2010) 30 VR 428, 440 [52].

[9] That is, the maker of the representation had personal (i.e. not hearsay) knowledge of the asserted fact.

[10] See statements of Christina Liwa at page 116 paragraph 16 and Diana Guarang at page 121 paragraphs 6-8.

[11] See statements of Christine Liwa at page 117 paragraph 21 and Election Majilakwa at page 136 paragraph 24.

[12] See statement of Election Majilakwa at page 135 paragraph 23.

[13] See VARE of Amanuel Lual at page 690, Q 11.

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