Director of Public Prosecutions v Andrew Baker (Ruling No 4)
[2023] VSC 35
•7 February 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0094
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ANDREW BAKER | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14–21 June 2022, 1 February 2023 |
DATE OF RULING: | 7 February 2023 |
CASE MAY BE CITED AS: | DPP v Andrew Baker (Ruling No 4) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 35 |
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CRIMINAL LAW – Murder – Evidence – Relationship evidence – Whether evidence should be excluded due to prejudicial effect – Whether probative value is outweighed by danger of unfair prejudice – Danger of unfair prejudice can be cured by giving appropriate directions to the jury – Evidence Act 2008 (Vic) s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Dickie with Ms N Deltondo | Office of Public Prosecutions |
| For the Accused | Mr J Saunders with Ms S Thomas | Tait Lawyers |
HER HONOUR:
Background
The accused is charged with the murder of Sarah Gatt (‘S Gatt’). The Crown alleges that the accused murdered S Gatt sometime between 19 and 23 April 2017.[1] On 21 November 2022, I ruled on the admissibility of various hearsay representations (‘Ruling No 1’),[2] as well as on the admissibility of certain letters and notes written by the accused (‘Ruling No 2’),[3] and evidence of incriminating conduct (‘Ruling No 3’).[4]
[1]The accused’s trial is scheduled to commence in February 2023.
[2]DPP v Andrew Baker (Ruling No 1) [2022] VSC 704 (‘Ruling No 1’).
[3]DPP v Andrew Baker (Ruling No 2) [2022] VSC 705 (‘Ruling No 2’).
[4]DPP v Andrew Baker (Ruling No 3) [2022] VSC 706 (‘Ruling No 3’).
The background to this matter is set out in Ruling No 1, and this ruling should be read alongside Ruling No 1. To summarise, the disputed evidence relates to six incidents of family violence alleged to have been committed by the accused against S Gatt that span from December 2014 to December 2015. Each incident involves disputed representations made either to triple zero call-takers, police or others.
(i) Incident 1: 27 December 2014;
(ii) Incident 2: 6 February 2015;
(iii) Incident 3: 3 April 2015;
(iv) Incident 4: 8 July 2015;
(v) Incident 5: 28 August 2015; and
(vi) Incident 7: 19 December 2015.
As noted in Ruling No 1, the Defence made some general submissions during oral argument about the need for exclusion of evidence under ss 135 and 137 of the Evidence Act 2008 (Vic) (‘EA’) about the disputed hearsay representations, but reserved their position for later, submitting that arguments about their probative value and the danger of unfair prejudice would be impacted by my ultimate rulings. Following those rulings, the parties filed further written submissions.[5] Although the Defence referred to both ss 135 and 137 in their earlier oral submissions, their final written submissions on the disputed evidence focused on s 137 of the EA. Accordingly, this ruling deals with the admissibility of the disputed evidence under s 137 of the EA. It should be noted that further brief oral discussion of some aspects of some of the incidents occurred during a mention on 1 February 2023.
[5]Further Defence Pretrial Submissions, dated 30 November 2022; Further Prosecution Submissions for Pre-Trial Hearing, dated 6 December 2022.
Submissions of the parties
In written submissions, the Defence indicated that they rely on s 137 of the EA to argue that all of the evidence referred to in paragraphs 16(a)-(g) of the Summary of Prosecution Opening (‘SPO’)[6] – being the six incidents[7] dealt with in Ruling No 1 – should be excluded on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused.
[6]Amended Summary of Prosecution Opening, dated 13 December 2021 (‘Amended SPO’).
[7]Previously the Crown relied on an additional incident, referred to as ‘representation 6’, but they withdrew reliance on this incident. The original numbering of the incidents was maintained to avoid confusion, so the disputed representations are contained in incidents 1, 2, 3, 4, 5 and 7. Further, in paragraph 16 of the SPO there is no paragraph ‘(f)’.
In addition to specific submissions in relation to the disputed evidence, the parties made some general submissions. It is convenient to deal with those general submissions first.
Probative value
The Defence submitted that the probative value of the disputed evidence is low in circumstances where S Gatt’s body was found some nine months after the putative date of death, and there being no evidence of exactly when or how her death occurred, including the exact mechanism or injury that caused death. They submitted that the Crown cannot exclude accident or death by natural causes, so evidence of past violence committed by the accused against S Gatt was not relevant, or had little probative value.
The Crown responded that while the exact mechanism of death is not known, circumstantial evidence is relied upon to establish that S Gatt was the victim of a homicide and did not die as a result of accident or natural causes.[8]
[8]This evidence includes the blood spatter evidence and the positioning and staging of the body in the bathtub and other surrounding circumstances which have been referred to in the SPO and discussed in the arguments preceding the previous rulings.
Like the arguments put in relation to the disputed hearsay representations, the Defence submitted that there is insufficient proximity between the incidents and S Gatt’s putative date of death. It is not alleged that the accused committed any acts of violence against S Gatt after 16 December 2015.[9] The gap between the incidents and S Gatt’s putative date of death lessened the probative value of the representations, while also creating a risk that the jury would speculate that the accused had been continuously violent from 16 December 2015 until S Gatt's putative date of death.
[9]Referring to Azizi v The Queen [2012] VSCA 205 [39] and R v Basham (Ruling No 1) [2021] VSC 349 [98]-[99], the Defence made oral submissions that the gap between the incident on 16 December 2015 and S Gatt’s putative date of death lessened the probative value of the representations: Preliminary Argument Transcript, 16 July 2022, 127-129; Preliminary Argument Transcript, 17 July 2022, 219-228.
The Crown submitted that when viewed in context with other evidence – namely, the evidence in the letters and notes, certain things said by the accused to police, and statements made by the accused to others about Leona – the disputed evidence aids in proof of the accused’s feelings of jealousy and insecurity throughout his relationship with S Gatt.
The Defence submitted that when viewed in the context of the accused and S Gatt’s chaotic lifestyle and drug use, the probative value of the representations is low. S Gatt often came into contact with police and made complaints to police, including some that were not proceeded with and some that were false.
The Crown submitted that the accused’s and deceased’s lifestyle did not detract from the need to properly consider whether the accused had the motive to kill S Gatt and did in fact kill her.
The Defence submitted, that while the SPO states that the murder is ‘alleged to have been committed in the context of past violence by the accused towards [S] Gatt and increased anger and jealousy arising from her relationship with Leona’, no specific motive is alleged. If the Crown is alleging that the accused was motivated by his jealousy over S Gatt’s relationship with Leona, any incident that occurred before S Gatt met Leona is irrelevant.
In response to that assertion, the Crown clarified that it alleges that the accused was ‘motivated to kill [S] Gatt by his increased anger arising from his jealousy and possessiveness over [S] Gatt’, which intensified when she entered into a relationship with Leona. The Crown point to other evidence which suggests that the accused was jealous of S Gatt’s relationship with Leona, including the account given in his record of interview. The Crown submitted that the disputed evidence demonstrates the depth of the accused’s insecurities and jealousy, and enables the jury to adequately understand his relationship with S Gatt and his state of mind. Further, if the disputed evidence were not put before the jury, the jury would be left with a distorted picture of S Gatt’s relationship with Leona. The evidence is relevant to negate any Defence insinuation that it was Leona alone who was violent towards S Gatt and who likely murdered her.
Risk of unfair prejudice
The Defence submitted that the disputed evidence is ‘extremely prejudicial in the context of a case where there is no cause of death’ or evidence about the mechanism or circumstances of death. They further submitted that the evidence is more properly characterised as tendency evidence, rather than evidence of relationship or motive.
The Crown responded that there is no unfair prejudice from the disputed evidence simply because the precise cause of S Gatt’s death is unknown. The evidence is relevant in conjunction with other circumstantial evidence touching on the nature of the accused man’s relationship with S Gatt and is relevant to motive.
Consideration
While the exact mechanism of death is not known, I accept that there is circumstantial evidence from which the jury could infer that S Gatt was the victim of a homicide, and did not die by accidental or natural causes.[10] While the Defence may raise alternative hypotheses as to the cause of S Gatt’s death, and as to who may have been responsible if she did die as a result of homicide, these matters involve questions for the jury. I do not consider that the probative value of the disputed evidence is low merely because the precise manner or mechanism of death has not been identified.
[10]For examples of cases where an accused was convicted of murder where the cause of death was unknown due to the body never being recovered or being heavily decomposed, see: R v Dawson [2022] NSWSC 1131; McDonald v The Queen [2013] VSCA 128; and R v Baden Clay (2016) 258 CLR 308. However, it should be noted that in Baden Clay there was some expert evidence that the deceased did not die from natural causes or a drug overdose.
Regarding temporal proximity, the Defence have emphasised the absence of evidence of physical violence by the accused towards S Gatt between 16 December 2015 and S Gatt’s death. While that may be so, the disputed evidence shows a continuation of the accused’s state of mind towards S Gatt and his relationship with her over that period. When viewed alongside other evidence in this case, particularly the letters/notes, the accused’s record of interview, and certain things said by the accused to other people, the representations form part of a string of temporally connected pieces of evidence.
As discussed in my previous ruling, the accused man’s state of mind and relationship with the deceased is highly relevant to the question of motive and whether it was the accused who killed S Gatt. It is clear that the Crown allege that the accused had a motive to kill S Gatt due to the intense emotions he felt about her, which further intensified when she entered into a relationship with Leona. I do not agree with the submission that there is no probative value in the representations of incidents which allegedly took place before S Gatt met Leona (the most proximate incident is alleged to have occurred around seven months before they met). The Crown has articulated the relevance and probative value of the evidence as demonstrating the accused’s ‘attitude and state of mind towards [S Gatt] and towards others whom he perceived as rivals for her attentions’. The evidence is clearly relevant and probative for those purposes.
I am not persuaded by the Defence argument regarding S Gatt’s chaotic lifestyle and its impact on the probative value of the disputed evidence. For the purpose of s 137, the evidence is to be taken at its highest[11] and consideration is directed towards the degree to which the evidence could affect the probability of the existence of a fact in issue. Questions of S Gatt’s credibility or reliability do not arise at the stage of determining probative value, and I do not consider that the disputed evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a jury.[12]
[11]IMM v the Queen (2016) 257 CLR 300, 312-314 (French C, Kiefel, Bell and Keane JJ) (‘IMM’).
[12]Ibid 312 (French C, Kiefel, Bell and Keane JJ).
Submissions of the parties in relation to incidents 1-7
Bearing in mind the parties’ more general arguments referred to above, in weighing the degree of probative value against the danger of unfair prejudice, it is necessary to consider each incident in turn, while also taking into consideration the issue of temporal proximity.
Incident 1
Submissions
The Defence submitted that:
(a) S Gatt did not make a police statement about the alleged assault.
(b) There is no evidence of any injury to S Gatt.
(c) There is a danger the jury may apply tendency reasoning or feel undue sympathy for S Gatt.
The Crown responded that (a) and (b) are matters that go towards reliability. Regarding (c), this concern is curable by judicial directions.
Consideration
Incident 1 begins a series of temporally connected events where S Gatt requests that police attend her home in response to a family violence allegation made about the accused. When taken in combination with the other disputed evidence, the incident forms part of a sequence of events that is probative of the intensely tumultuous, emotional and sometimes violent nature of the relationship between the accused and S Gatt. The concerns about the absence of any police statement or evidence of injury go to the credibility and reliability of the representations and are matters for the jury.
Regarding any unfair prejudice that may arise from the representations or from any other aspect of the incident, any risk that the jury may apply tendency reasoning or feel undue sympathy for S Gatt can be addressed by firm judicial warnings and directions. Directions can also be given as to how to approach the hearsay aspect of the incident. Given the capacity of the Court to direct the jury appropriately, the probative value of the evidence is not outweighed by a danger of unfair prejudice.
The only qualification I make to this determination is that I will exclude reference to the assertion that ‘[t]he accused had gone but had left three large knives in the doorway’. This appears to be based on a LEAP entry made by Const. Shae Morrison, which states: ‘In the doorway of the house three large knives were located handles facing upwards’.[13] The assertion that the accused left the knives there appears to be based on an inference drawn by the officer, rather than on an allegation by S Gatt. The reference to the knives (which are potentially lethal weapons) gives rise to the risk of unfair prejudice due to the lack of clarity surrounding the reference. The probative value of this aspect is also reduced in circumstances where the Crown have not adumbrated the specific relevance of the three knives. Accordingly, I regard the probative value of the reference to the three knives in the doorway as being outweighed by the danger of unfair prejudice and therefore it must be excluded under s 137.
[13]Physical Folder, Pre-trial Hearing on Hearsay Evidence, Tab 1, D-2038.
Incident 2
The Defence made the following submissions in relation to the danger of unfair prejudice to the accused:
(a) S/C Lewis, who spoke to S Gatt at the scene, said that S Gatt was erratic and unable to differentiate between events that occurred on 27 December 2014 and events that occurred on a different day. Significant prejudice arises where S Gatt has not provided a statement and cannot be cross examined on this.
(b) The threats allegedly made by the accused (for example that S Gatt was a ‘dead fucking dog’) are highly prejudicial, and that there is a danger that the jury will speculate about the alleged threats and whether the accused was making a threat to kill S Gatt or apply tendency reasoning in relation to the threats.
(c) There is a danger the jury may feel undue sympathy for S Gatt.
The Crown responded that the matters raised by the Defence go towards reliability and can be the subject of directions to the jury about the hearsay nature of the representations
Consideration
Incident 2 relates to representations made by S Gatt to S/C Lewis on 6 February 2015 that during a verbal altercation, the accused said the following to S Gatt:
(vii) ‘If he couldn’t have her, no one could’;
(viii) Calling her a ‘fucken slut’;
(ix)That he would get her property tagged with a Rebels tag; and
(x) She was a ‘fucken dead dog’.
Regarding the Defence submissions about the evidence of S/C Lewis, the issues raised relate to matters of credibility and reliability which are questions for the jury. Incident 2 has probative value as showing the accused’s intense feelings of jealousy and possessiveness of S Gatt, and resulting feeling of anger towards her. When taken in combination with the other disputed evidence, Incident 2 forms part of a sequence of events that is probative of the intensely tumultuous, emotional and sometimes violent nature of the relationship between the accused and S Gatt, including intense feelings of possessiveness and jealousy.
Regarding the danger of unfair prejudice, the potential prejudice arising from reference to the Rebels tag was raised with parties,[14] and it was noted that the Crown had indicated that references to ‘bikies’ would be removed from certain letters/notes to avoid prejudice to the accused. The Defence indicated that, while they maintained an objection to the incident as a whole, should the incident be admitted they would seek inclusion of the reference to the Rebels tag so as to avoid distorting the meaning of the words and avoid giving the impression of a more direct threat.
[14]Transcript of Proceedings, DPP v Andrew Baker (Supreme Court of Victoria, S ECR 2022 0094, Jane Dixon J, 1 February 2023) 7-8.
I consider that the inference is open that the words express an indirect threat, and that any risk of the jury speculating beyond the available inferences can be addressed by appropriate directions. The jury will be warned about the need for care before drawing inferences in a criminal trial. The jury will also be warned not to engage in tendency reasoning, and about the need to exercise care when dealing with hearsay evidence. Given the availability of appropriate warnings and directions, I do not consider that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused.
Incident 3
The Defence argued that:
(a) Despite alleging she was kneed in the stomach while pregnant, S Gatt refused to go to hospital and had no visible injuries.
(b) Const. Nigel Walker[15] (who spoke to S Gatt at the scene) was initially confused by what S Gatt was saying.
[15]The ‘Further Defence Pretrial Submissions, dated 30 November 2022’ refer to ‘Lewis’ rather than ‘Walker’ under Incident 3.
(c) There is no evidence that the neighbours heard an altercation between the accused and S Gatt.
(d) There is a danger the jury may speculate as to the alleged pregnancy and any injuries to S Gatt.
(e) There is a danger the jury may apply tendency reasoning or feel undue sympathy for S Gatt.
The Crown responded that the jury could be told that there is no evidence S Gatt was pregnant, and that they would be willing to remove or avoid references to S Gatt being pregnant. Again, the Crown say any risk of speculation or improper reasoning could be cured by directions.
Consideration
Like Incidents 1 and 2, when taken in combination with the other disputed evidence, this incident forms part of a sequence of events showing the intensely tumultuous, emotional and sometimes violent nature of the relationship between the accused and S Gatt.
Many of the matters pointed to by the Defence go towards reliability and do not impact the assessment of the probative value of the evidence for the purposes of s 137.
Regarding any potential prejudice that may arise, the jury will be warned about the hearsay nature of the representations that form part of the evidence, and warned not to speculate about matters not in evidence. The issue of pregnancy is not integral to the disputed evidence; indeed, neither the disputed representations nor the SPO[16] contain reference to S Gatt being pregnant, and the Crown have indicated a willingness to concede there is no evidence S Gatt was pregnant. In circumstances where appropriate directions can be given to address any risk of jury speculation or impermissible tendency reasoning, I do not consider that the probative value is outweighed by a danger of unfair prejudice to the accused.
[16]Paragraph 16(c) of the Amended SPO (n 6) reads as follows:
About 8.45pm on 3 April 2015, after an argument between them, Ms Gatt tried to get the accused to leave her unit. The accused struck her to the face and kneed her to the stomach before leaving. Ms Gatt contacted police, who attended and spoke with her. She said the accused had been intermittently sleeping at her unit.
Incident 4
Submissions
The Defence pointed to the following factors as giving rise to prejudice:
(a) There is no medical evidence or photographs taken to substantiate the alleged injuries.
(b) The knife later found on the accused did not match the description given by S Gatt.
(c) D/S/C Stacey Johnson stated that on the evening in question, S Gatt was behaving erratically and abusing police.
(d) There is a danger the jury may speculate that the marks on the deceased’s face were caused by the accused and/or about the knife found on the accused.
(e) There is a danger that the jury may apply tendency reasoning and/or feel undue sympathy towards the deceased.
The Crown responded that any inconsistencies in the evidence could be addressed by the parties in submissions.
Consideration
This alleged incident, like the incidents discussed above, forms part of a sequence of events showing the intensely tumultuous, emotional and sometimes violent nature of the relationship between the accused and S Gatt.
Regarding the risk of unfair prejudice arising out of inconsistencies in the evidence, or because of S Gatt’s erratic behaviour, these are matters for the jury to consider, and can be exposed in cross-examination of the available witnesses, and referred to in closing addresses. Warnings can be given to the jury regarding their approach to the hearsay representations of S Gatt. I do not accept that the evidence is ‘extremely prejudicial’, bearing in mind that s 137 is focused on unfair prejudice. Any danger that the jury may apply tendency reasoning, feel undue sympathy, or speculate about the marks on the deceased’s face or the knife found on the accused can be addressed by judicial warnings and directions.
Incident 5
Submissions
The Defence made the following submissions:
(a) There is no evidence from Mr Turksen or Mr Gabriele[17] about the incident.
[17]Mr Gabriele was present with the accused outside S Gatt’s house at the time of the incident.
(b) The messages that are alleged to have been sent by the accused are sent from Mr Gabriele’s phone.
(c) There is no audio recording of the voice-to-text messages.
(d) There is a danger that the jury may attach excessive weight to the allegation that the accused threw a rock at S Gatt’s home and sent the messages.
(e) There is a danger that the jury may apply tendency reasoning and feel undue sympathy towards S Gatt.
The Crown submitted that issues around Mr Turksen not giving evidence can be addressed in cross examination and submissions, and that Mr Gabriele can be cross-examined on his memory of the incident.[18]
[18]In their written submissions, the Crown initially argued that the reference at assertion at 5.2(d) that the accused ‘normally carried a knife’, and reference to S Gatt’s response to the incident at 5.1(f), should be admitted. However, in an email to the court on 1 February 2023, the Crown indicated a willingness to remove these parts.
Consideration
The incident forms part of a string of temporally connected pieces of evidence and is probative of the intensely tumultuous, emotional, and sometimes violent nature of the relationship between the accused and S Gatt.
Regarding the danger of unfair prejudice from the alleged rock throwing incident and the text messages,[19] and in the absence of evidence from Mr Turksen and Mr Gabriele in relation to the incident, I accept the Crown’s submission that ‘[a]ny difficulties arising from Mr Turksen not giving evidence can be highlighted in cross-examination and/or submissions’.[20] If Mr Turksen cannot be found, warnings about forensic disadvantage can be given. Mr Gabriele, who was present outside the house with the accused at the time of the alleged incident, can be cross-examined on his memory of the incident and on the use of his phone to send the messages. He is well placed answer questions on those issues. Warnings can also be given to the jury as to how to approach and assess the hearsay representations attributed to S Gatt.
[19]As noted by the Crown, the text messages were not dealt with in Ruling No 1 because it was agreed between the parties that these are direct evidence rather than hearsay. It appears from their submissions that the Defence seek a ruling under s 137 in relation to the voice and text messages.
[20]Further Prosecution Submissions for Pre-Trial Hearing, dated 6 December 2022 [21(d)].
The Crown has agreed to remove the words at 5.2(d) ‘[t]he accused normally carries a knife, but she is not sure if he has one now’ and the section of S Gatt’s statement dated 28 August 2015 which is referred to at 5.1(f). With these parts of the evidence removed, and taking into account that appropriate directions can be given on impermissible tendency reasoning, I consider that any danger of unfair prejudice to the accused, arising from the evidence of the incident and from the disputed representations of S Gatt, does not outweigh the probative value of the evidence.
Incident 7
Submissions
The Defence submitted that there is a danger that the jury may:
(a) attach excessive weight to the allegation that the accused ‘carries a knife’ (7.3(b)) where there is no allegation that he had one at the time of the incident;
(b) attach excessive weight to references about domestic violence and general comments made by S Gatt about the accused (including that she was considering going to a domestic violence refuge) and to speculation about how the accused may have entered the house (7.3(c));
(c) apply tendency reasoning; and
(d) feel undue sympathy towards S Gatt.
The Crown submitted that the reference to the intervention order simply sets out the history of the order, which is consistent with the tumultuous nature of the relationship. The Crown agreed to remove reference to the accused carrying a knife.[21]
[21]While initially the Crown’s written submissions asserted that the reference to the knife should remain, in an email to the Court on 1 February 2023, the Crown agreed to remove reference to the knife.
Consideration
Incident 7 is the closest incident in time to when the Crown allege S Gatt died. While there is a gap in time between the incident and S Gatt’s death, the disputed evidence forms an integral part of the picture that the Crown rely on to demonstrate the persistence of emotions expressed by the accused over a lengthy period, and the intensely tumultuous, emotional and sometimes violent nature of the relationship. The accused’s conduct, and the words he used during the incident, including the threat, ‘you’re dead this time, there will be no warning you’re dead this time’ are highly probative of his state of mind towards S Gatt and his relationship with her at that time. Taken together with other evidence, these asserted facts allow the Crown to allege that the accused maintained that state of mind up until S Gatt’s death. The letters/notes written by the accused express intense feelings of anger, jealousy and possessiveness, and continue right up to (and following) S Gatt’s death.
Further, when providing a statement about Incident 7, S Gatt provided a bundle of letters/notes (Appendix AC) in an envelope postmarked 14 December 2015 and dated 4, 8, 12 and 13 December 2015. Those letters and notes were ruled admissible in Ruling No 2. The context in which S Gatt provided those letters, which includes attending the police station following the alleged family violence incident, is suggestive of S Gatt’s ongoing concern about the accused’s behaviour and about the contents of the letters.
I also note that 7.1(b) reads: ‘Over this time there have been a number of arguments and the accused has assaulted [S] Gatt. From 20 April 2015 an intervention order has been in place.’ This evidence is probative of the tumultuous nature of their relationship and does not give rise to a danger of unfair prejudice in circumstances where the jury will be aware of earlier incidents of alleged violence.
The words at 7.3(c), ‘She needs someone to be at her house in case the accused returns. She is thinking of going to a domestic violence refuge’, provide contextual information about the incident and are probative of the nature of the relationship at that time. It is difficult to see what prejudice arises from S Gatt expressing a desire to go to a refuge in circumstances where she has alleged a domestic violence incident. Similarly, S Gatt’s description of how she believes the accused entered the house[22] provides contextual background to the relationship between the couple at that time.
[22]7.1(c) ‘She did not know how he got in. She had the locks for the front and rear door changed. She thinks the accused got in through the laundry’.
Appropriate directions can be given to avoid the risk of the jury engaging in speculation or impermissible tendency reasoning, and in those circumstances I am not persuaded that the danger of unfair prejudice to the accused outweighs the probative value of the disputed evidence and representations.
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