Director of Public Prosecutions v Barbaro (Ruling No 1)
[2023] VSC 202
•20 April 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0114
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| RICARDO BARBARO | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 April 2023 |
DATE OF RULING: | 20 April 2023 |
DATE OF REVISED RULING: | 24 April 2023 |
CASE MAY BE CITED AS: | DPP v Barbaro (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 202 |
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CRIMINAL LAW – Ruling – Evidence – Murder – Whether representations admissible under exception to hearsay rule – Whether deceased’s representations made shortly after the asserted fact – Whether deceased’s representation made in circumstances that make it unlikely that the representation is a fabrication – Whether deceased’s representation made in circumstances that make it highly probable that the representation is reliable – Whether the probative value is outweighed by the danger of unfair prejudice – Evidence Act 2008 (Vic) ss 59, 65, 66A and 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Bourke KC with Ms S. Locke | Office of Public Prosecutions |
| For the Accused | Mr R. Nathwani with Ms F. Fox | Haines & Polites Legal Practitioners |
HIS HONOUR:
Background
Ricardo Barbaro (‘the accused’) is charged with the murder of Ellie Price (‘the deceased woman’) on or about 29 April 2020. Her death apparently occurred in an apartment at 360A Park Street, South Melbourne.
At the time, the accused was the partner or boyfriend of the deceased woman.
The trial of the accused on the charge of murder is about to commence.
On the documents filed, the issue in the trial will be whether the prosecution can prove beyond reasonable doubt that it was the accused who caused the death of the deceased woman. The prosecution case against the accused is entirely circumstantial. No person witnessed the death of Ms Price or its aftermath, and the accused has made no relevant admissions to being involved in her death.
There are a number of preliminary issues to be dealt with before the jury is empanelled. This ruling concerns the resolution of some of those issues, argued before me on 17 April 2023 with Mr Bourke KC and Ms Locke for the prosecution and Mr Nathwani and Ms Fox for the accused.
Hearsay
On 29 October 2021, the prosecution filed a Notice of Hearsay Evidence pursuant to s 67 of the Evidence Act 2008 (Vic) (‘the Act’). On 12 April 2023, the prosecution filed an Amended Notice of Hearsay Evidence (‘the Notice’), which in part is attached to this ruling at Annexure A.
The Notice identifies a number of previous representations of the deceased woman to various people. It is not disputed that each of the 59 representations set out in the Notice fall within the definition of a ‘representation’ under the Act.[1] The Prosecutor seeks to have this evidence admitted as evidence of the truth of the contents of each of the representations.
[1]Evidence Act 2008 (Vic) Dictionary pt 1 (definition of ‘representation’).
Section 65 of the Act creates a number of separate exceptions to the hearsay rule which may apply in criminal proceedings where the maker of the representation is not available to give evidence.
In seeking to admit these representations, there are two parts of s 65 of the Act that are relied upon by the prosecution. They are ss 65(2)(b) and/or (c):
(1)This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
(a)…
(b)was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c)was made in circumstances that make it highly probable that the representation is reliable; or
(d)…
Most of the representations relied on are said to be relevant to the relationship between the deceased woman and the accused. There is still a debate to be had about that.
Each of the representations does concern a fact within the deceased woman’s personal knowledge as contemplated by s 62(1) of the Act.
The bases on which these representations are argued to be admissible are either that:
(a) the representation was made shortly after the asserted fact occurred and in circumstances whereby it is unlikely to be a fabrication;[2] or
(b) it was made in circumstances which make it highly probable it was reliable.[3]
[2]Evidence Act 2008 (Vic) s 65(2)(b).
[3]Ibid s 65(2)(c).
In some cases which I will identify, the prosecution also relies on s 66A of the Act which provides:
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.
Legal Principle
In dealing with this issue, it is necessary to assess each representation individually. I have done that, as will be seen in this ruling, although this is a case where to some degree, the representations can also be considered in groups because they occur at the same time and in the same circumstances.
I am not concerned with the general broader question of whether the deceased woman was generally reliable, although her reliability on particular matters certainly arises for consideration when, for example, there is conflict between what she had said about an incident compared with what other evidence from, for example, the police shows or fails to show. In addition, Mr Nathwani made submissions about a number of other factors concerning her reliability including reference to her mental health, aspects of her relationship with Mr G ray, her use of drugs and alcohol, allegations made about another person, an act of apparent dishonesty and other similar matters.
Despite the need to assess each representation individually, it is also permissible, and in this case appropriate, to identify where the circumstances are materially identical in relation to each representation and to group such representations together, provided I am aware of the existence of considerations which differ between various representations.[4]
[4]Prasad v The Queen [2020] NSWCCA 349 [89]-[94].
Where s 65 of the Act requires the Court to consider ‘the circumstances’ in which the representation was made, it is accepted that circumstances include previous and subsequent statements or conduct of the person who made the representation, to the extent those matters are relevant to the reliability of the circumstances in which the person made the representation in question.[5]
[5]DPP v Asling (Ruling No 2) [2017] VSC 38 [22]; DPP v Lo (Ruling No 2) [2018] VSC 148 [66]-[68].
In assessing whether the representation was made shortly after the asserted fact, the Court must make a normative judgment based on the circumstances of the case.[6] A Court should be careful not to give too much weight to the period of delay at the expense of considering whether the representation was likely to be a fabrication.[7]
[6]R v Mankotia [1998] NSWSC 295.
[7]Williams v R [2000] FCA 1868 [48]; DPP v Lo (Ruling No 2) [2018] VSC 148 [70].
For s 65(2)(b) of the Act to apply, there must be evidence of when the asserted fact occurred, relative to when the representation was made.
It is necessary to consider the circumstances in which the representation was made but these circumstances are considered for the purpose of assessing whether the representation is a fabrication.
The question of whether a representation is a fabrication directs attention to whether the representation is a deliberate concoction.
So far as the exception contained in s 65(2)(c) of the Act is concerned, the requirement that surrounding circumstances make it ‘highly probable’ that a representation was ‘reliable’ is an onerous one, which is difficult to satisfy.
I will return to further legal principle concerning s 65(2)(c) later in this ruling.
The Representations Considered
The representations can be divided into four broad groups:
1)The representations made to First Constable Adam Zarb of Victoria Police on 1 November 2019;
2)The representations made to members of the Federal Police at Cairns Airport on 16 February 2020;
3)The representations made to Mark Gray; and
4)The representations to Tracey Gangell.
The Representations made to First Constable Adam Zarb
The background is as follows.
As at November 2019, the deceased woman and the accused had known each other for approximately one month and had been in a relationship for about a week.
On Friday, 1 November 2019 at approximately 9.00pm, they were having dinner in South Melbourne. An argument occurred and it continued on their drive back to where the deceased woman was living in Wellington Street, St Kilda.
She was driving her silver Mercedes Benz, with the accused in the passenger seat. As they continued arguing, the accused is alleged to have punched the inside of the deceased woman’s vehicle. He punched the windscreen, glass dashboard, and passenger side mirror (through the open window), damaging each of them.
The deceased woman had to stop multiple times on her way home whilst the accused damaged her vehicle. She parked on the street outside her apartment and called triple zero. The accused then got out of the vehicle and left. The deceased woman then parked her vehicle in the secure car park below the address. Police attended at 10.18pm. Photographs of the damage to the vehicle were obtained and a statement taken from the deceased woman. The accused was later arrested and charged.
What the deceased woman told police about the incident occupies representations 1-18 of the table in the Notice.
Representation 18 is sought to be admitted under s 66A of the Act to which I have already referred.
Each of the representations is a segment from the police statement made by the deceased woman.
Mr Bourke KC submitted that these representations occurred in circumstances where it is unlikely they were fabricated and, alternatively highly probably they were reliable. That submission was based on what he argued was the close temporal proximity between the asserted facts and representations by the deceased woman. The deceased woman made a police statement which was effectively sworn and there was no evidence that she was in any way impaired. Her representations are supported by other evidence, including photographs of the damage to the vehicle.
These representations are said to be reflective of the volatility of the relationship.
On behalf of the accused, Mr Nathwani submitted that the statement of the deceased woman to Zarb was not a spontaneous representation occurring ‘shortly after’ within the meaning of s 65(2)(b) of the Act.
It was also submitted that the circumstances suggest that the statement of the deceased woman is a fabrication or that it is not highly probable that it is reliable.
Reliance was placed on a number of broad considerations which impugn the reliability of the deceased woman. They include mental health issues, use of drugs and alcohol, the acquittal of a man named Shaaban who she claimed had assaulted her, other issues of dishonesty and evidence suggesting she lied to police in Queensland in relation to the next group of representations I am to deal with.
Representation 18, in which the deceased woman asserts to Zarb that ‘I don’t want to be in a relationship with [the accused]. He scares me’ is accepted by Mr Nathwani to be admissible under s 66A of the Act. However, he submits that it should be excluded under s 137 of the Act. I will return that issue shortly.
In my view, these representations were made when the deceased woman was still under the ‘proximate pressure’ of the series of incidents that had occurred in the vehicle, as I have described. In my opinion, they are admissible as exceptions to the hearsay rule under s 65(2)(b) of the Act.
I also consider that the surrounding circumstances make it ‘highly probable’ that the representations were ‘reliable’. That conclusion is not prevented by the fact that notes were added to a written statement and there was a chance for the document to be reviewed. That does not mean, in my opinion, that the res gestae approach to the issue is undermined.
The next step is to consider whether any of the representations should be excluded pursuant to s 137 of the Act, that is, because their probative value is exceeded by their prejudicial effect.
I would agree with the Prosecutor that most of these representations are reflective of the volatility of the relationship between the accused and the deceased woman and, therefore, have probative value.
However, this is a situation where there is a particular issue which partly occupies the accused, being the family law issue concerning his children. The deceased woman was not involved in that dispute.
In my view, in some cases, the risk of unfair prejudice outweighs any probative value and because of that, should result in the exclusion of some representations under s 137 of the Act. I originally concluded that representations 8, 12, 13, 15 and 16 be excluded under s 137 of the Act. However, after further argument by the parties, I have revised my conclusion so that representations 15 and 16 are excluded under s 137 of the Act, but representations 8, 12 and 13 are not excluded.
I would not exclude representation 18 on that same basis.
The Representations made to members of the Federal Police at Cairns Airport
The background of these representations is as follows.
The accused and the deceased woman went to Cairns in Queensland in February 2020, apparently apropos St Valentine’s day. The representations concern incidents which occurred in the hotel at which they were staying.
On Thursday, 16 February 2020, Leading Senior Constable Daniel Meyer was on duty at Cairns Airport and at about 7.35pm, he and Senior Constable Lee Walker observed the deceased woman on a public phone located within the check-in area of the Domestic Terminal.
She was observed to be having a telephone conversation and was crying and appeared distressed. They then spoke to her and enquired as to her welfare. What followed in the conversation with police were the representations concerning this ruling, being representations 19-40 in the Notice.
There are both broad and specific arguments put in relation to these representations.
Mr Bourke KC again argues that they are admissible pursuant to ss 65(2)(b) and (c) of the Act. There are, he submits, a number of circumstances that make fabrication unlikely and reliability highly probable. They include:
(a) There is a close temporal proximity between the events and the representations, being between 14 and 16 February and 16 February respectively – I respectfully disagree with that;
(b) The context was that the deceased woman was trying to return to Melbourne and needing assistance to do that;
(c) The police approached her;
(d) Her appearance at the airport was consistent with what she was saying;
(e) Her representations were consistent with what she had told Queensland Police during earlier attendances at the hotel they were staying at;
(f) She was forthright about her intoxication; and
(g) She was not impaired when speaking to Meyer and Walker.
Mr Nathwani submitted that these representations are not ‘shortly after’ within the meaning of s 65(2)(b) of the Act. She has had time to reflect and they are not spontaneous. Because of the matters to which I have already referred in paragraph [15] above, it is argued that the representations are not reliable.
But, it seems to me that the primary question is whether the prosecution have established that these representations were made spontaneously during (‘when’) or under the proximate pressure of (‘shortly after’) the occurrence of the asserted fact. As the Court of Appeal in Huici[8] pointed out:
Although the express condition is temporal, the requirement that it be contemporaneous with, or shortly after, the event will mean that almost inevitably the representations will also be associated in place and circumstances with the event.
[8]Huici v The King [2023] VSCA 5 (‘Huici').
And later, the Court of Appeal said:
…as the Full Court of the Federal Court noted in Conway, it would be a mistake to substitute for the statutory text the question whether the event was fresh in the mind of the representor. It would be to invert the process to say that because the event was fresh in the mind of the representor or described an event that was likely to stick in the mind that it should be regarded as having been made shortly after the event occurred.
In my opinion, and consistent with the reasoning of the Court in Huici, none of these representations can be admitted under s 65(2)(b) of the Act because they cannot be regarded as occurring ‘when or shortly after the asserted fact occurred’.
That then brings me to whether any of the representations can be admitted pursuant to s 65(2)(c) of the Act on the basis that, in the case of particular representations, it is highly probable that the representation is reliable.
In Hiuci, in dealing with the application of this part of s 65(2), the Court said:
The applicant submits that the evidence of the complainant’s mental state and history of confused episodes precluded the judge from finding that any of the representations were made in circumstances that make it highly probable that the representations are reliable. He points to the evidence of capacity referred to above to make good the assertion that the complainant’s accounts could not meet the high threshold of par 65(2)(c).
The first step in addressing this ground is to understand the nature and kind of circumstances that may legitimately be taken into account for the purposes of assessing the reliability of the representations. In Sio, the High Court accepted the conceptual distinction between the circumstances in which a representation is made and facts that may show that the asserted fact is true. The distinction has come up in the context of determining whether other representations made by the representor may inform the reliability of the representation.
In R v Ambrosoli, in the New South Wales Court of Criminal Appeal, Mason P (with whom Hulme and Simpson JJ agreed) said:
It would therefore appear that [Mankotia], Conway and [Williams] are at one in:
·focussing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable; and
·excluding evidence tending only to prove the asserted fact.
In my view this is a correct approach to s 65(2). To the extent that R v Dean and R v Lock decide otherwise they should not be followed.
The point of disagreement between [Mankotia] on the one hand and Conway/[Williams] on the other is the legitimacy of resort to inconsistent or consistent statements of the maker of the previous representation or other circumstances (whenever occurring) directly touching the credibility of the maker of the representation at the time of making the representation (cf the victim in R v Bedingfield). Sperling J (at 10) indicated obiter that he would disregard these matters (see his reference to excluding from consideration ‘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’. On this I prefer the view of the Federal Court, a fortiori because it is presumptively binding having regard to the principle in Australian Securities Commission v Marlborough Gold Mines Ltd. I would, however, emphasise that prior or later statements or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation. If they do no more than tend to address the asserted fact or ultimate issue they have no bearing on the issues presented by s 65(2).
Accordingly, I would not exclude reference to events outside the time and place of the making of the previous representation itself from the range of ‘circumstances’ capable of reflecting on the unlikelihood of it being a fabrication when made or the high probability of it being reliable when made.
In our view, it was open to the judge to conclude that par 65(2)(c) was satisfied.”[9]
[9]Huici [70].
In dealing with the admissibility of the representations under s 65(2)(c) of the Act, I will ’focus on the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable’.[10]
[10]Ibid.
Primarily, the circumstances were as follows based the statement of Mr Meyer with edits, deleting unnecessary details:
On Thursday 16th February 2020, I was rostered to perform duties from 12:00pm to 10:00pm.
About 7:35pm, Senior Constable (S/C) Lee Walker and I attended the Cairns Airport Domestic Terminal for a routine patrol. I parked the marked Police vehicle outside the domestic check-in hall, adjacent to Hudsons Coffee.
I exited the vehicle and walked towards S/C WALKER who was standing on the footpath outside the terminal doors. S/C Walker advised me he had seen a female near Hudsons Coffee crying and that the female had entered the domestic terminal.
S/C WALKER and I entered the Domestic Terminal.
About 7:37pm, I observed a female on a public phone located within the check-in area of the Domestic Terminal. She was of above average height, mid-twenties, thin with long straight blonde hair. I now know this female to be Ellie Amelia PRICE born 5th July 1993.
I observed PRICE having a phone conversation with an unknown person, PRICE was crying and appeared distressed.
S/C WALKER and I approached PRICE.
I could see PRICE had been crying, her eyes were red and watery, her face was flushed and eye make-up running, she was shaking and her voice was quavering.
I was present when S/C WALKER had a conversation with PRICE.
WALKER said words to the effect of:
"Are you okay, what has happened?"
PRICE then provided information regarding her circumstances.
PRICE said words to the effect of:
"I am trying to get home but there are no flights today to Melbourne, I have spent the day on the Barrier Reef with my boyfriend Ricardo BARBARO, we had a fight yesterday and another fight today. He hit me, smashed my mobile phone, kicked me out of the hotel and kept all my things including my clothing. I have no money for a flight and I am trying to get hold of my mum and sister to transfer me money."
"Police were called after the first fight, he hit me but they did not take a statement from me because I had been drinking."
"Today he locked me out of the room without any of my things, I have no money and no phone, Police went to the hotel but he had been kicked out."
"Queensland Police dropped me at the airport." (Representations 19-30)
WALKER said words to the effect of:
"Do you have any ID?"
I then saw PRICE hand S/C WALKER a Victorian driver licence.
S/C WALKER said words to the effect of:
"Do you have a phone number?"
PRICE provided her mobile number as [redacted].
S/C WALKER then moved away to conduct checks via the police radio while I continued to have a conversation with PRICE.
I said words to the effect of:
"Where were you staying?"
She said:
"The Pullman, Palm Cove."
I said:
"Is there anyone who can book a flight for you and somewhere to stay for the night?"
She said:
"I am trying to get hold of my mum and sister."
I then handed PRICE my AFP issued work phone so she could attempt to contact someone to help her.
During my conversation with PRICE I did not observe any physical injuries.
I have referred to the call log and can state PRICE made the following phone calls:
16th February 2020 at 7:51pm, No. [redacted], call duration five minutes.
During the conversation I could hear PRICE repeating what she had told S/C WALKER and I. PRICE became visibly upset and agitated. (Overhearing parts of the conversation I believed the person to whom PRICE was speaking with was unable or refused to provide her with money for the flight to Melbourne or accommodation.)
Price finished the phone call, still shaking and crying, she said words to the effect of:
"They won't help."
I said: "Have you got anyone else you can call?"
PRICE indicated there was and made another phone call.
During the conversation PRICE appeared relieved.
I observed PRICE write down credit card details.
I said: "can I speak with him before you hang up?"
PRICE handed me the phone, I had a conversation with the male, I said words to the effect of:
"Hi I'm Senior Constable MEYER from the AFP, can I confirm you are willing to pay for a flight and hotel for Ellie."
He said: "Yes."
I said: "Can I get your full name, date of birth?"
He said: "Mark GRAY born [redacted].”
I said: "What is your current address and phone number.
GRAY then provided his current address and phone number which I recorded.
After the phone call I asked PRICE a question.
I said: "Who is Mark?"
She said: "My best friend." (Representation 31)
About 8:25pm, Walker and Meyer took PRICE to the Cairns Sheridan Hotel.
That evidence, therefore, indicates that the deceased woman was approached by police at the airport terminal and responded to their enquiries. She had not approached them. She was in need of assistance and ultimately, succeeded in obtaining it with help from those policemen. It was in that context that she told them what she did. I am unable to see why these representations should be treated as being unreliable under s 65(2)(c) of the Act. In my opinion, the circumstances of the making of the representation leads me to conclude that it is unlikely that any of the representations, were a fabrication or that it was highly improbable that they were reliable.
This was not the first time that the deceased woman had given an account of the incidents to police. Queensland Police were called to their hotel on 14 February 2020 and she gave an account of what had occurred between her and the accused. Police spoke not only to the deceased but to the accused, hotel staff and two guests of the hotel who heard the commotion. These conversations were recorded on the body-worn cameras of the police members. In argument, I was urged to view that footage and I have done so. I was not specifically directed to any parts of it by counsel.
I have concluded that there is nothing in that material that leads me to doubt the reliability of the circumstances in which the deceased woman spoke to police at Cairns Airport.
I conclude that each representation is admissible pursuant to s 65(2)(c) of the Act.
The next question is whether any of the representations should be excluded pursuant to s 137 of the Act. That section provides:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
I am not sure that counsel has had a full opportunity to argue this aspect and I will hear any further submissions that Mr Nathwani seeks to make.
The Representations made to Mark Gray
Mark Gray is a 60 year old accountant who says he had a close, but non-sexual friendship with the deceased woman since 2017. Over that period, he has given her various forms of assistance including financial assistance.
The relevant part of his narrative is as follows.
There was a period when Gray had not seen the deceased woman until he received a telephone call from the police in Cairns to which I have already referred in dealing the earlier representations. That was in February 2020, when he agreed to provide the money needed for a hotel and airfare.
In March 2020, he received a telephone call from the deceased woman. She was at home and told him about an incident with a man who she said was her ex-boyfriend. She did not say his name at the time but said she had met him at the Men's Gallery (Representation 41).
She said she had been in hospital for 2 days (Representation 42).
She explained to Gray that police had taken an apprehended violence order (‘AVO’) on the boyfriend (Representation 43).
On Monday, 20 April 2020, the deceased woman contacted Gray. He was to visit her at 2.00pm, but she changed the time and he cancelled. The next day, at 2.20pm, he went to her apartment and they spent about 10 minutes there before leaving. They walked and stopped at a bench and spoke for about 5 minutes. It was a windy day and the wind blew her scarf off. Gray says he could see a large ‘hicky’ type mark on the right side of her neck. He asked her about it and she said the ‘ex had tried to choke’ her (Representation 47). She used her hands to demonstrate with her hand around her throat. She said that this had happened the night before, being 20 April 2020 (Representation 48).
He asked her what he [the accused] wanted. She said that he wanted $25,000 from her. She did not say what the money was for. She said she did not have the money and he said he would settle on $10,000. She said his name was Ricardo (Representation 49).
That night, he received calls from the deceased woman who, he says, was irate and upset. She wanted $100,000 (Representation 50). She said ‘I could really fuck you up.’ She said ‘I could tell police that you raped me.’ (Representation 51).
He hung up on her. He later transferred $25,000 to her on the morning of 24 April 2020, which he said he did because he did not want to be charged with rape.
On Sunday, 26 April 2020, he received a text from the deceased. In another message, she said ‘I don't want to lose you and I look up to you’ (Representation 52).
At 9.39pm that night, she texted again stating ‘sorry this has happened obviously I'm going through a lot like everything has happened then I get it again what the fuck I can't catch a break from being terrorised.’ (Representation 53).
Representations 50-53 are accepted to be admissible by the accused and presumably, will be relied upon.
The only basis on which any of these representations could be admissible is pursuant to s 65(2)(c) of the Act.
Applying the principles already discussed, the focus is on the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable.
In my view, and applying that test, representations 47 and 48 are admissible under s 65(2)(c) of the Act. Representation 49, save for the words, ‘she said his name was Ricardo’ is not first-hand hearsay and, for that reason is inadmissible.
Representations 41, 42 and 43 may also be admissible but without the need to hear further argument, I would exclude them under s 137 of the Act on the basis that their probative value is low and there is a risk of unfair prejudice.
The Representations made to Tracey Gangell
Tracey Gangell is the mother of the deceased woman. There are three representations made to her which are required to be dealt with. I will describe these in narrative form.
According to Ms Gangell, on or around 8 February 2020, the deceased woman was agitated and saying she needed a charger for her phone. She said she was going off in a panic telling her that Ms Gangell [her mother] did not know what he [the accused] was like. ‘You just don’t know what he’s like mum’ were her exact words (Representation 57).
She told Ms Gangell that ’Rick’ was constantly accusing her of coming over to Tasmania to sleep with other men. When they got home and she was on the phone to him, she called out to Ms Gangell and Ms Gangell had to tell the accused that she was alone and did not have a man with her. When she got off the phone, she told Ms Gangell that he [the accused] was very jealous (Representation 58).
On or about 8 February 2020, the deceased continued to tell her mother she was going back there to get everything organised and she was going to return home until he [the accused] left and was out of her life (Representation 59).
As to that last representation - Representation 59 - it is accepted by the accused that it is admissible under s 66A of the Act as being a representation that was a contemporaneous representation about the her ‘health, feelings, sensations, intention, knowledge or state of mind.’
In my view, none of these representations are first-hand hearsay so as to be admissible under s 65(2)(c) of the Act. They are each a statement by the deceased woman of something said to her by the accused. There is no ‘asserted fact’ being described other than something that is claimed to have been said by the accused to the deceased woman. I would, therefore, not admit any of those representations.
Annexure A
| No. | Witness | Date | Location | Representation | Source(s) | Circumstances relied on | Defence position |
| 1 | FC Adam Zarb | 1/11/2019 | St Kilda | I have been in a relationship with a guy I know as Ricardo or Ricky for about a week. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 2 | FC Adam Zarb | 1/11/2019 | St Kilda | The relationship has been okay so far | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 3 | FC Adam Zarb | 1/11/2019 | St Kilda | He has recently been in Perth at court for something to do with his kids. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 4 | FC Adam Zarb | 1/11/2019 | St Kilda | We had a bit of an argument before he left over something I said. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 5 | FC Adam Zarb | 1/11/2019 | St Kilda | We had an argument at dinner and continued arguing when we left. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 6 | FC Adam Zarb | 1/11/2019 | St Kilda | He started smashing the car up at some traffic lights. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 7 | FC Adam Zarb | 1/11/2019 | St Kilda | He began punching the windscreen and it smashed. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| No. | Witness | Date | Location | Representation | Source(s) | Circumstances relied on | Defence position |
| 8 | FC Adam Zarb | 1/11/2019 | St Kilda | I kept driving home and he kept yelling at me about his children. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 9 | FC Adam Zarb | 1/11/2019 | St Kilda | He then ripped up the dashboard. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 10 | FC Adam Zarb | 1/11/2019 | St Kilda | At a set of traffic lights at Punt Rd and St Kilda Rd, Ricky punched the passenger side mirror through his open window breaking it. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 11 | FC Adam Zarb | 1/11/2019 | St Kilda | We got home and I parked out the front and I called 000. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 12 | FC Adam Zarb | 1/11/2019 | St Kilda | He was still in the car telling me that he was going to lose his kids. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 13 | FC Adam Zarb | 1/11/2019 | St Kilda | He then got angry at me yelling and screaming. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 14 | FC Adam Zarb | 1/11/2019 | St Kilda | I was so terrified and felt helpless. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 15 | FC Adam Zarb | 1/11/2019 | St Kilda | Ricky got out of the car and started talking to a random guy. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| No. | Witness | Date | Location | Representation | Source(s) | Circumstances relied on | Defence position |
| 16 | FC Adam Zarb | 1/11/2019 | St Kilda | The guy was trying to get him away from me. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 17 | FC Adam Zarb | 1/11/2019 | St Kilda | Police arrived shortly after. | Statement of Ellie Price dated 1/11/2019 (Annexure A) | s 65(2)(b) and (c) | Contested |
| 18 | FC Adam Zarb | 1/11/2019 | St Kilda | I don’t want to be in a relationship with him. He scares me | Statement of Ellie Price dated 1/11/2019 (Annexure A) | Section 66A | Contested |
| 19 | Daniel Meyer | 16.02.2020 | Cairns | | Statement of LSC Daniel Meyer dated 8 May 2020 (Annexure B) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Not pressed by the prosecution unless no issue taken by defence – just to give context to conversation |
| 20 | Daniel Meyer | 16.02.2020 | Cairns | I have spent the day on the Barrier Reef with my boyfriend Ricardo BARBARO | Statement of LSC Daniel Meyer dated 8 May 2020 (Annexure B) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 21 | Daniel Meyer | 16.02.2020 | Cairns | We had a fight yesterday and another fight today. | Statement of LSC Daniel Meyer dated 8 May 2020 (Annexure B) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| No. | Witness | Date | Location | Representation | Source(s) | Circumstances relied on | Defence position |
| 22 | Daniel Meyer | 16.02.2020 | Cairns | He hit me, smashed my mobile phone, kicked me out of the hotel and kept all my things including my clothing. | Statement of LSC Daniel Meyer dated 8 May 2020 (Annexure B) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 23 | Daniel Meyer | 16.02.2020 | Cairns | I have no money for a flight and I am trying to get hold of my mum and sister to transfer me money. | Statement of LSC Daniel Meyer dated 8 May 2020 (Annexure B) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 24 | Daniel Meyer | 16.02.2020 | Cairns | Police were called after the first fight. | Statement of LSC Daniel Meyer dated 8 May 2020 (Annexure B) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 25 | Daniel Meyer | 16.02.2020 | Cairns | He hit me. | Statement of LSC Daniel Meyer dated 8 May 2020 (Annexure B) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| No. | Witness | Date | Location | Representation | Source(s) | Circumstances relied on | Defence position |
| 26 | Daniel Meyer | 16.02.2020 | Cairns | Police did not take a statement from me because I had been drinking. | Statement of LSC Daniel Meyer dated 8 May 2020 (Annexure B) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 27 | Daniel Meyer | 16.02.2020 | Cairns | Today he locked me out of the room without any of my things. | Statement of LSC Daniel Meyer dated 8 May 2020 (Annexure B) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 28 | Daniel Meyer | 16.02.2020 | Cairns | I have no money and no phone | Statement of LSC Daniel Meyer dated 8 May 2020 (Annexure B) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 29 | Daniel Meyer | 16.02.2020 | Cairns | Police went to the hotel but he had been kicked out. | Statement of LSC Daniel Meyer dated 8 May 2020 (Annexure B) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| No. | Witness | Date | Location | Representation | Source(s) | Circumstances relied on | Defence position |
| 30 | Daniel Meyer | 16.02.2020 | Cairns | Queensland Police dropped me at the airport. | Statement of LSC Daniel Meyer dated 8 May 2020 (Annexure B) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 31 | Daniel Meyer | 16.02.2020 | Cairns | In response to Meyer’s question, who is Mark, the deceased said “my best friend”. | Statement of LSC Daniel Meyer dated 8 May 2020 (Annexure B) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Not contested by defence |
| 32 | Lee Walker | 16.02.2020 | Cairns | Yesterday and today I was assaulted twice by my boyfriend. His name is Ricardo Barbaro. | SC Lee Walker dated 7 May 2020 (Annexure C) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 33 | Lee Walker | 16.02.2020 | Cairns | My mobile phone was smashed by Ricardo. | SC Lee Walker dated 7 May 2020 (Annexure C) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 34 | Lee Walker | 16.02.2020 | Cairns | Queensland Police came both times I was assaulted. | SC Lee Walker dated 7 May 2020 (Annexure C) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| No. | Witness | Date | Location | Representation | Source(s) | Circumstances relied on | Defence position |
| 35 | Lee Walker | 16.02.2020 | Cairns | About 7:25 I was dropped off at the Airport by Queensland Police, to catch a flight to Melbourne. | SC Lee Walker dated 7 May 2020 (Annexure C) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 36 | Lee Walker | 16.02.2020 | Cairns | Then I found out there were no more flights to Melbourne today. | SC Lee Walker dated 7 May 2020 (Annexure C) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 37 | Lee Walker | 16.02.2020 | Cairns | I don’t have any cash and there is no money left on my credit card. | SC Lee Walker dated 7 May 2020 (Annexure C) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 38 | Lee Walker | 16.02.2020 | Cairns | I flew to Cairns with Ricardo two days ago on Tiger. | SC Lee Walker dated 7 May 2020 (Annexure C) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 39 | Lee Walker | 16.02.2020 | Cairns | I came to Cairns to see the Great Barrier Reef. | SC Lee Walker dated 7 May 2020 (Annexure C) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| No. | Witness | Date | Location | Representation | Source(s) | Circumstances relied on | Defence position |
| 40 | Lee Walker | 16.02.2020 | Cairns | My mother can put money on my credit card if I can talk to her. | SC Lee Walker dated 7 May 2020 (Annexure C) Notes of LSC Daniel Meyer | s 65(2)(b) and (c) | Contested |
| 41 | Mark Gray | In the month of March 2020 | Melbourne | She told me about an incident with a man who she said was her ex-boyfriend. She didn’t say his name at the time but said she had met him at the Men’s Gallery. | Statement of Mark Gray dated 5 May 2020 (Annexure D) | s 65(2)(b) and (c) | Contested |
| 42 | Mark Gray | In the month of March 2020 | Melbourne | She said she had been | Statement of Mark Gray dated 5 May 2020 (Annexure D) | s 65(2)(b) and (c) | Contested |
| 43 | Mark Gray | In the month of March 2020 | Melbourne | She explained that police had taken an AVO on the boyfriend. | Statement of Mark Gray dated 5 May 2020 (Annexure D) | s 65(2)(b) and (c) | Contested |
| 44 | Mark Gray | In the month of March 2020 | Melbourne | | Statement of Mark Gray dated 5 May 2020 (Annexure D) | s 65(2)(b) and (c) | Not pressed by the prosecution |
| 45 | Mark Gray | Shortly after the last conversation | Melbourne | | Statement of Mark Gray dated 5 May 2020 (Annexure D) | s 65(2)(b) and (c) | Not pressed by the prosecution |
| No. | Witness | Date | Location | Representation | Source(s) | Circumstances relied on | Defence position |
| 46 | Mark Gray | 21 April 2020 | Melbourne | | Statement of Mark Gray dated 5 May 2020 (Annexure D) | s 65(2)(b) and (c) | Not pressed by the prosecution |
| 47 | Mark Gray | 21 April 2020 | Melbourne | She said the ex had tried to choke her. | Statement of Mark Gray dated 5 May 2020 (Annexure D) | s 65(2)(b) and (c) | Contested |
| 48 | Mark Gray | 21 April 2020 | Melbourne | She said that this had happened the night before being the 20th April 2020. | Statement of Mark Gray dated 5 May 2020 (Annexure D) | s 65(2)(b) and (c) | Contested |
| 49 | Mark Gray | 21 April 2020 | Melbourne | She said that he wanted $25,000 from her. She said she didn’t have the money and he would settle on $10,000. She said his name was Ricardo. | Statement of Mark Gray dated 5 May 2020 (Annexure D) | s 65(2)(b) and (c) | Conceded by defence |
| 50 | Mark Gray | 21 April 2020 | Melbourne | She wanted $100,000. | Statement of Mark Gray dated 5 May 2020 (Annexure D) | s 65(2)(b) and (c) | Conceded by defence |
| 51 | Mark Gray | 21 April 2020 | Melbourne | She said, “I could really fuck you up. She said I could tell police that you raped me.” | Statement of Mark Gray dated 5 May 2020 (Annexure D) | s 65(2)(b) and (c) | Conceded by defence |
| No. | Witness | Date | Location | Representation | Source(s) | Circumstances relied on | Defence position |
| 52 | Mark Gray | 26 April 2020 | Melbourne | No I don’t want to lose u out of my life I look up to you but you just attacked me that day xx | Notice of additional evidence dated 10 November 2011, Photographs of text message exchange between Mark Gray and Ellie Price between 26 April and 29 April 2020 | s 66A | Contested |
| 53 | Mark Gray | 26 April 2020 | Melbourne | I’m sorry this has happened so obviously I’m going through a lot too like Everything that has happened and then I get it again wtf I can’t catch a Break form being terrorised xx | Notice of additional evidence dated 10 November 2011, Photographs of text message exchange between Mark Gray and Ellie Price between 26 April and 29 April 2020 | s 66A | Contested |
| 54 | Tracey Gangell | On or around 22 April 2020 | Melbourne / Tasmania | | Notice of Additional Evidence – Photographs of text messages between Mark Gray and Tracey Gangell | s 65(2)(b) and (c) | Not pressed by the prosecution |
| 55 | Tracey Gangell | Unclear | Melbourne / Tasmania | | Statement of Tracey Gangell dated 21 May 2020 (Annexure F) | s 65(2)(b) and (c) | Not pressed by the prosecution. |
| No. | Witness | Date | Location | Representation | Source(s) | Circumstances relied on | Defence position |
| 56 | Tracey Gangell | Unclear | Melbourne/Tasmania | | Statement of Tracey Gangell dated 21 May 2020 (Annexure F) | s 65(2)(b) and (c) | Not pressed by the prosecution. |
| 57 | Tracey Gangell | On or around 8 February 2020 | Melbourne/Tasmania | She was stressing about this saying that she needed a charger for her phone. She was going off in a panic telling me that I just didn’t know what he was like. “You just don’t know what he’s like mum” were her exact words. | Statement of Tracey Gangell dated 4 May 2021 (Annexure G) | s 65(2)(b) and (c) | Contested |
| 58 | Tracey Gangell | On or around 8 February 2020 | Melbourne/Tasmania | Rick was accusing her constantly of coming over to Tasmania to sleep with other men. When we got home and she was on the phone to him she called out to me and I had to tell Rick that she was alone and didn’t have a man with her. When she got off the phone she told me that he was very jealous. | Statement of Tracey Gangell dated 4 May 2021 (Annexure G) | s 65(2)(b) and (c) | Contested |
| 59 | Tracey Gangell | On or around 8 February 2020 | Melbourne/Tasmania | She continued to say she was going back there to get everything organised and she was going to return home until he left and was out of her life. | Statement of Tracey Gangell dated 4 May 2021 (Annexure G) | Section 66A | Contested |
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