Director of Public Prosecutions v Bednar (Ruling No 1)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0275

DIRECTOR OF PUBLIC PROSECUTIONS
v
THOMAS BEDNAR	Accused

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATES OF HEARING:	26, 27, 28 & 30 September 2022
DATE OF JUDGMENT:	31 October 2022
CASE MAY BE CITED AS:	DPP v Bednar (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2022] VSC 655

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CRIMINAL LAW – Murder - Evidence – Admissibility – Alleged murder by accused of his mother (‘the deceased’) – Main issue identity of offender – Relationship evidence – Evidence of deceased’s fear of the accused – Evidence of four periods of involuntary confinement of accused in a psychiatric ward in year before death of deceased – Negative statements by accused concerning the deceased made to doctors and nurses during and after those periods – Accused seemingly blamed the deceased for the periods in hospital - Evidence of acts of misconduct by accused within six months of killing – Palm print of accused found on dressing table close to where body of deceased located – Hearsay evidence – Consideration of law concerning relationship evidence – Poor relationship between accused and deceased at time of her death integral part of prosecution case – Contention that the relationship had been fraught for years, then deteriorated further after hospital admissions – Early history of relationship integral to proper understanding of deterioration in relationship in lead-up to events – Relationship evidence generally relevant and admissible – Hospital admissions and way in which they occurred admissible – Negative statements made by accused admissible – Acts of misconduct admissible – Evidence of fear of accused by deceased admissible – Fingerprint evidence admissible – Hearsay evidence not admissible – Evidence Act 2008 ss 55, 137 – Jury Directions Act 2015 ss 26, 27, 29.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford KC with Ms S Locke	Ms Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Mr J Desmond with Ms N Kaddeche	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

The accused is to stand trial for the murder of his mother, Judy Bednar (‘the deceased’). The trial is listed to commence on 14 November 2022.

A number of matters have arisen for resolution before the commencement of the trial.

Facts

The body of the deceased was found lying on the floor of her bedroom in her unit at 19 Drinan Court, Chelsea, on 15 May 2021. She had died of multiple blunt force injuries in circumstances pointing to murder. The evidence would suggest that the attack which caused the death of the deceased occurred in the early hours of 13 May 2021. The main issue in the trial will be the identity of the person responsible for the infliction of the injuries.

The accused, who was born on 3 March 1968, was the only child of the deceased. His parents separated in 1974 and he remained living with his mother for some years. Evidence would suggest that for much of his life, the accused had a difficult relationship with his mother. When he was 15, he went to live with a foster family in Caulfield North. In 2013, when he was about 45, the accused self-published a book entitled A Rasta’s Tale from Down Under (‘A Rasta’s Tale’),[1] in which, amongst other things, he described some of the conflict in his relationship with the deceased.
[1]‘Rasta’ being a reference to a Rastafarian.

The accused has a significant history of mental health issues going back many years. He was first admitted as an involuntary psychiatric patient in 1993, with later admissions in 1994, 1996 and 1998. He was diagnosed with bipolar affective disorder. Between 2001 and 2018 or 2019, his mental health was relatively stable. It is expected that much of this history will not be aired in the trial, but some of it will inevitably be touched upon.

In 2020, the mental health of the accused deteriorated, leading to four involuntary admissions to the psychiatric ward at Frankston Hospital (‘Ward 2 West’) in the second half of 2020. The deceased had some involvement in those admissions.

On the prosecution case, set against the background of the fraught relationship between the accused and his mother over the years, the accused became motivated to kill her because he resented her efforts from mid-2020 onwards to obtain treatment for him. He allegedly believed that the deceased was lying to doctors to have him admitted.

In July 2019, the accused moved into premises at 33 Embankment Grove, Chelsea, only a short distance from the deceased’s home. Evidence would suggest his mental health began to decline from that time.

In mid-2020, the accused began to send what were described in the Amended Summary of Prosecution Opening for Trial[2] as ‘delusional, aggressive and paranoid messages’[3] to friends and family, including his mother,
[2]Dated 20 July 2022 (‘the SPO’).
[3]SPO [22].

Being concerned for the accused’s wellbeing, and in due course, for her own safety, the deceased, in conjunction with others, made efforts to have the accused assessed by a Community Assessment and Treatment Team (‘CATT’).

The first of the involuntary admissions to Ward 2 West occurred between 25 and 30 June 2020. During the admission, the accused denied that he was unwell and blamed his mother for having him committed.

The accused was admitted for a second time on 28 July 2022. The admitting psychiatry registrar noted that the accused was suffering from an early relapse of schizoaffective disorder/bipolar disorder.[4] During the mental state review, the registrar noted that the accused stated that his mother had been providing misleading information about his mental state and that his diagnosis was based on misinterpretation and incorrect information from his mother. He described his mother as having been vindictive throughout their relationship and said that he ‘can’t love‘ her.
[4]As things currently stand, the prosecution has indicated that it does not necessarily seek to lead evidence of this diagnosis.

The accused was discharged from the hospital on 4 August 2020 but readmitted on 5 August 2020, remaining until 9 August 2020.

In mid-2020, the deceased discussed her concerns about her son and for her own safety with her friend Diane Katz. In August 2020, an old friend of the accused, Danny Cohen, helped the deceased to install a Ring doorbell camera[5] on her front door.
[5]A type of motion-detecting camera installed as part of a doorbell.

In September 2020, the deceased wrote to her local Member of Parliament, Tim Richardson (‘Mr Richardson’), complaining about a restriction which had been placed upon her driver licence as a result of the accused having reported her as unfit to drive. In the letter, she expressed her concerns about the lack of treatment he was receiving, and reported fears for his safety and her safety. She stated that she had not seen the accused since 3 July 2020. At this time and until her death, the deceased had a family violence intervention order (‘FVIO’) in place prohibiting contact by the accused. Evidence would indicate that the accused was aware of this fact.

On 2 November 2020 at approximately 4.00am, the accused was captured on the Ring doorbell camera emptying the rubbish from a neighbour’s bin onto the front yard of the deceased’s home.

On 4 November 2020 at 8.49pm, the accused attended at the deceased’s address and turned off the power to her home.

On 5 November 2021 at 3.25pm, the accused attended at the front door of the premises and kicked in a window, smashing it. The deceased called 000 and the accused left her property.

At 7.00pm on the evening of 5 November 2020, the accused was admitted for the fourth time as an involuntary patient to Ward 2 West. He remained until 19 November 2020, following which he was discharged into the care of an outpatient community mental health service until February 2021.

Following the intrusions by the accused onto her property, the deceased had a CCTV system installed and all the locks to her house changed. These steps were carried out between 7 and 9 November 2020.

It is alleged that during the course of the four hospital admissions between 25 June and 19 November 2020, the accused repeatedly expressed to his treating nurses and doctors significant animosity towards his mother.

On 13 November 2020, a family meeting was held by Consultant Psychiatrist Dhara Perera, attended by the accused and the deceased amongst others. At the meeting, the accused expressed his grievances against his mother, which he had apparently written down on a piece of paper, including that she hated his father more than she loved him and that as a child she had never taken him to soccer training. The accused said at the meeting that his mother was dead to him and that when she was buried, no one would go to her funeral.

Although he repeatedly denied any thoughts of hurting himself or his mother, the accused consistently presented as angry towards the deceased for telling lies about him and setting him up.

A further intrusion by the accused onto the property of the deceased occurred at 7.10am on 9 January 2021. The CCTV system captured the accused jumping the fence into the deceased’s front garden and turning off the mains water tap before jumping back over the fence and leaving the area.

At a review with his outpatient community mental health service case manager Julie Fletcher on 11 January 2021, the accused complained that doctors and the mental health service were incompetent for failing to check allegations made against him, admitted he had broken his mother’s window but claimed he was justified in doing so, described his mother as deranged, and accused her of having prevented him from having contact with his father. He accused his mother of having set him up to be sexually assaulted by a gay friend of hers when he was 15.

On about 13 January 2021, the accused sent a text message to the deceased which read:

Your nothing more than a test tube to me I rejected your milk because your such a vindictive person even made my dog disappear at 5 and organised my Rape at 15 by gay friend of yours and then lied all those years and stripped me off (sic) all my family assets by playing dumbno (sic) wont rest til your in jail for all your crimes and if die before that’s okay you don’t believe in god so I know we’re you will end up and you on her side you leech

In a letter to the Peninsula Mental Health Service on 19 January 2021, the deceased expressed her concerns for the safety of the accused and for her own safety.

Between January and March 2021, the deceased engaged a handyman to explore the practicality of increasing the height of her front fence without replacing it. As it turned out, those alterations were not made.

In March 2021, the deceased was hospitalised after a fall. She received a knee replacement. After she was discharged from hospital, she stayed with Mr and Mrs Katz for about five weeks. She returned home on 26 April 2021, although she stayed with Mr and Mrs Katz again for the weekend of 30 April to 2 May 2021 before returning home again.

While staying with Mr and Mrs Katz, the deceased on several occasions told them that she feared for her life. She indicated that Chelsea Police had said that they could not do anything about it unless the accused physically harmed her, but ‘by that time, it will be too late because I’ll be dead’.

At 5.46pm on Tuesday 4 May 2021, the accused attended at the deceased’s home and rang the doorbell. She opened the front door but left the wire security door closed. The accused said to his mother, ‘Hello Judy, I would like to know why you lied last year, to say that I was crazy’. The deceased shut the front door and rang 000. The accused walked away.

The police were unable to identify any contact between the accused and the deceased after this date.

Thursday 13 May 2021

The last proven contact between the deceased and the outside world was at 1.06am on Thursday 13 May 2021 when she posted a comment on the Melbourne PC Users Group webpage.

The deceased owned a FitBit watch linked to a fitness tracking application on her phone. Data in the application indicates that at 2.40am, she commenced a period of sleep. At 4.47am, her sleep ended with a sharp burst of activity represented by an elevated heart rate for a short period of time. Shortly thereafter, the application stopped receiving data.

On 13 May 2021, the deceased failed to respond to text messages sent to her by Mrs Katz telling her what time she should arrive at the Katz residence for a dinner party on 14 May. When a gardener and a window cleaner attended, there was no sign of her. The gardener Ms Jenkins used a key stored in a key safe to enter the apartment after she had finished her work. She looked through the house, noticing it to be very cold. She did not find the deceased.

Friday 14 May 2021

Mrs Katz sent further text messages, made a number of phone calls and sent a WhatsApp message to the deceased the next day. These all went unanswered, and in the case of the latter message sent at 12.46pm, unread. The deceased did not attend the dinner party.

Saturday 15 May 2021

Having been alerted by Mrs Katz, members of Victoria Police attended inside the unit of the deceased. They entered through the front door with keys provided to them. The back door was observed to be closed but unlocked. The deceased was found lying face down and naked on the floor of her bedroom between the bed and the built-in robe. She had visible injuries and bloodstaining.

Crime scene examination

There were no signs of damage or forced entry at the front door. Signs of bloodstaining were found in a number of locations. The indications were that the deceased succumbed to her injuries in the location where she was found. Bloodstaining was found on the sheets of her bed and the underside of a pillow on the bed. A FitBit watch was located between the bed and a dresser in the room. The strap was broken. Black garbage bags with red ties were found in the garage.

An examination for fingerprints revealed the accused’s left index finger print on the doorframe between the kitchen and the garage, and the accused’s left palm print on the glass top of the dresser next to the deceased’s bed.

Post-mortem examination

Forensic pathologist Dr Brian Beer carried out an examination which revealed that the deceased suffered severe blunt force injuries during an assault with the cause of death found to be multiple injuries. Petechial haemorrhages raised the possibility of external neck pressure or strangulation. Most of the facial injuries were likely to have been caused by blows to the head, but some of the injuries were suggestive of potential suffocation. Ultimately, Dr Beer considered that there were a number of potential mechanisms of death, namely respiratory failure, direct strangulation and suffocation.

The matters in issue at the trial and the way the respective cases will be put

Essentially, the prosecution case is that in the context of a fraught relationship over many years, the relationship between the accused and the deceased deteriorated significantly in the aftermath of the involuntary admissions of the accused into Ward 2 West in 2020, for which, in part, he blamed his mother. There arose in him a motive to murder his mother. It is alleged that that is what he did. From the defence perspective, what will be centrally in issue in the trial is the identity of the person who killed the deceased. That said, Mr Desmond has not ruled out requesting that manslaughter should also be left to the jury, so I take it from that that there is a prospect that issue will be taken as to the existence of a murderous intent should the jury be satisfied beyond reasonable doubt that the accused was the killer.

The matters to be resolved

The matters under consideration can be viewed as falling under a number of heads, the first of them a broad one encompassing several different aspects of the evidence:

Relationship and context evidence

Under this heading, as noted, several different areas or aspects of the evidence were canvassed. The central questions were how far back any evidence of the relationship between the accused and the deceased should be permitted to go, and what type of material should be permitted to be led. The admissibility of a number of items or areas of the evidence was under consideration, including:

· the accused’s period of time living with foster parents;

· the accused’s relationship with Danny Cohen (‘Cohen’);

· excerpts from the accused’s self-published book, A Rasta’s Tale;

· messages sent to family members and friends as referred to in paragraph 22 of the SPO;

· the email sent by the deceased to Mr Richardson;

· the contents of the purple exercise book; and

· excerpts from a letter written by the deceased to the accused titled ‘Nevermind! The motto of our relationship.’

Evidence of the deceased’s fear of the accused

This was a further part of the relationship evidence sought to be led by the Crown. In the circumstances, I will consider it under a stand-alone heading. Under consideration was evidence of expressions of fear by the deceased of her son, including that he would kill her. These expressions seemingly commenced in the middle of 2020, and were particularly pronounced and repeated in the period of time in March to April 2021 during which the deceased stayed with her friends, Mr and Mrs Katz.

The medical/psychiatric evidence and accompanying negative statements by the accused about the deceased

The Crown seeks to lead evidence of the four compulsory admissions of the accused to Ward 2 West at Frankston Hospital between June and November 2020. The Crown did not necessarily seek to lead evidence of the diagnosis reached. Allied to the admissions were a number of statements made by the accused which were critical of his mother and her role in his life.

Negative statements made by the accused at family meeting on 13 November 2020

The Crown seeks to lead evidence of grievances expressed by the accused against his mother at a meeting held by Consultant Psychiatrist Dhara Perera and attended by the deceased and the accused.

Misconduct evidence

The Crown seeks to lead evidence of unwanted visits made by the accused to his mother’s property in November 2020 and January 2021 in which it is alleged the accused engaged in acts of vandalism or nuisance.

Fingerprint evidence

The Crown seeks to be able to lead evidence of the finding of the palm print of the accused on the top of the dresser in the deceased’s bedroom, a short distance from where she was found.

Hearsay evidence

In the end, the Crown sought the admission of one of the items of hearsay set out in the hearsay notice, namely, the first item concerning Diane Katz.

The prosecution submissions

The prosecution submissions, both in their written form, as represented by the amended Prosecution Outline of Submissions on Pre-trial Issues[6], and in the oral submissions, principally made by Ms Locke, who appeared with Mr Rochford KC before me, were generally made in response to the defence written and oral submissions of Mr Desmond who appeared with Ms Kaddeche. Notwithstanding that, it is convenient to summarise these submissions first.
[6]Dated 5 September 2022 (‘the prosecution outline’).

Ms Locke pointed out that the issue in dispute in the trial is identification. On the Crown case, between June and December 2020, the accused’s relationship with the deceased, which had always been fragile, completely broke down. He blamed his mother for the four admissions to Frankston Hospital in the second half of 2020. The evidence would show that he became fixated on the idea that his mother had lied about his mental health and had set him up.

What the Crown sought to do was to lead evidence which would give the jury a fair appreciation of the relationship between the accused and his mother.

Ms Locke indicated at the outset of her oral submissions that the prosecution relied upon the prosecution outline, which should be read in conjunction with the further and better particulars (‘the particulars’).[7] As she put it, those documents encapsulated the themes of the prosecution case.
[7]Filed on 2 September 2022.

Ms Locke submitted that the facts and circumstances set out in the SPO, as further refined in the particulars, encapsulate what was a very fraught relationship between the accused and the deceased. The Crown had been selective in identifying key pieces of evidence that revealed particular grievances held by the accused towards his mother over a long period of time. Those grievances, whilst expressed regularly to medical practitioners in 2020, related to events earlier in his life. Pieces of evidence selected about past events and feelings would place matters spoken of more recently by the accused in the context of the long-term relationship between him and his mother. As the Crown put it, their relationship going back decades is relevant to understanding the starting point of the relationship in 2020 before it descended further, contributed to by the four hospital admissions in 2020. What the prosecution sought to do in leading evidence about the earlier troubled relationship was simply to place the events from mid-2020 until the death of the deceased in an accurate context.[8]
[8]Transcript 124-6.

Ms Locke submitted that the expressions by Mr Bednar of his feelings towards his mother at earlier periods in his life would speak to the depth of his grievances and resentment towards his mother. These feelings of resentment were a ‘slow burning fuse’[9] in the context of which the more recent events occurred. Without the evidence of the historic grievances, the jury would have an unrealistic picture of the relationship between the accused and his mother.
[9]Ibid 126.

Ms Locke submitted that the evidence sought to be relied upon was selected so as to limit any risk of unfair prejudice to the accused which might arise from a focus on material pointing to the accused being mentally unwell as opposed to material simply showing the grievances he had carried towards his mother throughout his life.

Ms Locke submitted that many of the various aspects of the evidence subject to challenge were relevant to a proper appreciation of the relationship.

She submitted that the fact of the accused having gone to live with a foster family was a small fact in the case which was a marker of a particular event. No risk of unfair prejudice would attach to it. As for Cohen, he would be a relevant figure in the trial. Amongst other things, he received concerning messages from the accused, had a role in some of his involuntary admissions to hospital, and played a significant role in assisting the deceased with security at her property. The relationship he had with the deceased developed out of the relationship he had with the accused. The way in which that relationship developed is relevant. All of these matters should be permitted to be opened to the jury by the Crown. It cannot be the case that the Crown should be required to wait until the accused introduces the topic of Cohen.

The extracts from A Rasta’s Tale would be relied on not in proof of the truth of the facts asserted about events but rather to reflect the accused’s feelings about the relationship with his mother. The passages may be seen by the jury as being the expressions by the accused, at the time he wrote the book, of grievances he has carried throughout his life, and which may have been still in place at the time of the events in 2020. Ms Locke submitted that statements by the accused himself, whether in the book or elsewhere, are the best evidence about how he felt about his mother at the time of the statements. It may be that his grievances were well hidden for many years, but such material shows that the grievances were long-held and powerful. The fact that the accused saw fit to write these things in the book is:

like a marker of a particular event, like a signpost to say that in 2013 he self-published a book, it speaks to again the depth of this feeling that he has, these grievances that he has at that time, as opposed to, for example, this all of a sudden sort of arising in 2020, which might not actually reflect the longstanding nature.[10]

[10]Ibid 136.

Ms Locke volunteered that the title of the book need not necessarily be led if excerpts were permitted into evidence. She submitted that the book was written during a long period of psychiatric stability. It could be viewed as being a coherent narrative of some significant events in the accused’s life. She acknowledged that the propositions sought to be adduced from the book could by agreement be placed before the jury without the need for the extracts to be included in evidence. Ms Locke noted that the same would be the case with other written material sought to be adduced, including the email sent to the politician and some of the medical material.

The Crown in its written and oral submissions put forward a number of other items or areas of the evidence as being relevant as relationship or context evidence. These included:

· the disturbing text messages sent by the accused to friends and family in mid-2020;

· the existence of a family violence intervention order taken out by Victoria Police on behalf of the deceased against the accused;

· the misconduct evidence earlier referred to; and

· the expressions of hostility by the accused towards his mother to various medical professionals between June 2020 and February 2021.

Although little time was spent on the matter during submissions, it was implicit in the overall prosecution submissions that the four involuntary hospital stays are sought to be relied upon as an integral part of the prosecution evidence pointing to a seriously deteriorating relationship between the accused and the deceased in which the development of a motive to kill her may have occurred.

As for the things said by the accused during those admissions, and during the family meeting with Dr Perera, it was submitted that there is no evidentiary basis for an expectation of privacy by the accused, and no reason for the material to be excluded by the Court in the exercise of any discretion.

In respect of the so-called misconduct evidence constituted by the annoying and unwelcome visits by the accused to the deceased’s home in November 2020 and January 2021, that evidence, it was submitted, would fall to be regulated by Part 4, Division 2 of the Jury Directions Act 2015 (‘the JDA’). The prosecution noted that previous wrongdoing by an accused, including previous acts of family violence, have been held at common law to be admissible as indirectly showing that the accused’s acts were for a guilty rather than an innocent purpose. In support of that contention, the Crown relied upon Wilson v R,[11] R v Anderson,[12] R v PFD,[13] R v Basham (Ruling No 1),[14] and Hollingsworth v The Queen.[15]
[11](1970) 123 CLR 324 (‘Wilson’).
[12](2000) 1 VR 1.
[13](2001) 124 A Crim R 418.
[14][2021] VSC 349 (‘Basham’).
[15][2021] VSCA 354.

It was made clear that the acts of misconduct by the accused would not be sought to be relied upon for the purposes of tendency or coincidence reasoning. Rather, they are relevant simply as evidence of the hostile relationship between the accused and the deceased prior to her death. The material would go to the central issue in the case, namely, identification, because it would provide evidence of motive. Furthermore, the evidence would make it less likely that the deceased would have invited the accused into her home in the months leading up to her death. This would be relevant to identification of the offender because of the fingerprint evidence relied upon.

It was submitted that there is a temporal connection between the visits by the accused to the deceased’s home and the murder of the deceased. Even the events in November are not so distant as to be irrelevant or of such limited probative value that the risk of unfair prejudice would become an overriding consideration. Rather, these were key events in the relationship arc between the accused and the deceased in the 12 month period prior to her death speaking strongly to the breakdown of the relationship and necessary to provide the jury with an accurate picture of the extent of that breakdown.

Whilst these events were not violent as such – although the breaking of the window was aggressive behaviour – they were unusual and intimidating acts by a man towards his mother showing the extent to which the relationship had broken down.

As for the FVIO, the Crown made it clear it would not seek to lead evidence of such an order having been in place for years, but would rely on evidence to show that the accused was aware that a FVIO was in place at the relevant times.

In respect of the matter of the deceased’s expressed fear of the accused in the months leading up to her death, in her email to Tim Richardson, in her letter to the Clinical Director of Peninsula Mental Health Service, and in representations to Diane Katz, Ms Locke relied on s 66A of the Evidence Act 2008 (‘the Act’) and submitted that if otherwise admissible, the evidence would meet the requirements for admissibility under that provision. She went on to submit that the explicit link between the fear and some precipitating event is not a necessary pre-condition of admissibility. In any event, in this case, there were events that occurred in the period leading up to the expressions of fear that could constitute a link if one was required. It was submitted that the expressions of fear by the deceased from at least as early as the email sent to Mr Richardson in September 2020 are relevant because under the principle in Wilson, these would speak to the extent of the breakdown in the relationship enabling a better understanding of that matter.

Turning to the fingerprint evidence, Ms Locke submitted that the location of the clear latent palm print of the accused close to the body of the deceased on a surface regularly cleaned by a fastidious worker employed to clean, inter alia, that very surface is an item of circumstantial evidence the probative value of which outweighs the risk of unfair prejudice. The piece of evidence and how it would be used need not be proved beyond reasonable doubt. Accepting that there is some uncertainty about the precise time from which the accused was not permitted by his mother into the house, even taking the period from when the locks were changed and the CCTV cameras were installed in November 2020, there was regular and thorough cleaning of the house by professional housekeepers, and the finding of the print in those circumstances has significant probative value. It would be a small strand, only, of the evidence, the criticisms of which should be for a jury to assess. As for the contention that it would not be open for a jury to conclude that the print was left on the dresser on the occasion of the killing, Ms Locke submitted that such a conclusion would be open.

As for the fingerprint on the architrave, that would also be relevant, in light of the fact that it seems the killer had access to the home at the time of and after the murder in and out of the garage which would have taken the killer through that doorway.

In respect of the item of hearsay evidence, Ms Locke took the Court to the portions of the evidence of Ms Katz in which she indicated that the deceased had made the representation in express terms. She did admit there was some uncertainty in the evidence about the timing of any such statement.

The defence submissions

Mr Desmond relied upon an amended outline of submissions[16] and his oral submissions before me.
[16]Dated 26 September 2022 (‘the defence outline’).

In respect of much of the material in contest under the loose heading of relationship evidence, Mr Desmond submitted that the material was too remote in time from the time of the alleged murder, so that anything it said about the then-nature of the relationship between the accused and his mother would be irrelevant.

Mr Desmond questioned the relevance and challenged the admissibility of the contention contained in paragraph [5] of the SPO, namely, that ‘For much of the accused’s life, he had a fraught relationship with his mother’. Indeed, he challenged the admissibility of any evidence bearing out the contention of a fraught relationship. He submitted that it is entirely irrelevant to any fact in issue in the trial that in years gone by, the relationship between the accused and his mother was a troubled one. This is especially so in light of the good relationship which persisted for about 20 years leading up to the more recent deterioration.

For the same reason, Mr Desmond disputed the admissibility of the excerpts from A Rasta’s Tale. These statements by the accused, which were vague and about feelings and events from a time-period that was uncertain, were too remote in time from the charged crime and cannot have any relevance to a fact in issue such as the existence of a motive to kill, or whether the accused actually did kill the deceased. Mr Desmond submitted that it is incumbent upon the Crown to identify the timing of the various feelings and things spoken of by the accused in the excerpts.

If relevant, the excerpts and any other aspects of the evidence pointing to an historically troubled relationship would have quite limited probative value that would be outweighed by the danger of unfair prejudice. The unfair prejudice relied upon is the significant risk that the jury would engage in what Mr Desmond called ‘rank propensity reasoning’.[17]
[17]Transcript 35.

As Mr Desmond put it:

So what if [the relationship] was poor for such a long period of time? There had been no violence or threats to kill or anything like that for at least decades. So the fact that he had a dysfunctional childhood and adolescence, which he sheets home to his mother, and he wrote a book about it, who cares?[18]

[18]Ibid 39.

Mr Desmond made it clear that the accused will not be running a defence of mental impairment. In that context, depending on the extent to which the medical history of the accused may be permitted into evidence, the old relationship evidence may ‘bespeak a crazy man who has been crazy all his life, gratuitous in his hatred towards his mother, constantly venting’.[19] Mr Desmond submitted that the jury may reason, ‘he’s the type of bloke that would do the very thing that the Crown are alleging that he did’.[20] He labelled this possible effect as PSO, or ‘prejudicial spin off’.[21]
[19]Ibid 39.
[20]Ibid 39.
[21]Ibid 40.

Mr Desmond placed great reliance upon the ruling of Bell J in DPP v Paulino (Ruling No 1)[22] in which his Honour had drawn the line, so to speak at a time about three years before the murder of the deceased.
[22][2017] VSC 343 (‘Paulino’).

As Mr Desmond put it, any evidence of relationship in this case should be limited to what occurred in 2021. In submissions to which I will later turn, he submitted that no evidence should be led as to the medical history and diagnosis of the accused in 2020 and earlier as would inevitably occur if evidence of the ‘dislike statements’ made by the accused during his 2020 admissions into hospital was permitted to be led.

In the alternative, Mr Desmond submitted that nothing earlier than those hospital admissions should be permitted to be led by way of relationship evidence.

Mr Desmond objected to any evidence of the contents of paragraph [15] of the SPO concerning the applicant’s having gone to live with foster parents when he was 15, and having come to know Cohen in that connection. Indeed, notwithstanding that Cohen was cross-examined at some length during a s 198B hearing in this Court in a way which insinuated that he, Cohen, may have been responsible for the murder of the deceased, and that Mr Desmond indicated to me that there would likely be a suggestion in the trial that Cohen had a motive and may be the real killer, he submitted that it would be for the defence to ‘open up the Cohen narrative’.[23]
[23]Ibid 59.

In respect of the reason why the fact of the accused having been sent to live with foster parents should not be led, Mr Desmond suggested that it may reflect poorly upon the accused that his mother saw fit to send him away. There would be a high risk that ‘the sin for that will be visited upon the accused’.[24]
[24]Ibid 59.

In respect of the delusional, aggressive and paranoid messages referred to in paragraph [22] of the SPO, Mr Desmond submitted that the fact of these messages having being sent and their contents should not be led because the messages would reflect on the mental health of the accused and would be highly prejudicial to his cause. Furthermore, none of the messages contained any threats towards the deceased.

Mr Desmond objected to the admission of the email sent to Mr Richardson as referred to in paragraph [31] of the SPO on the basis of relevance, and alternatively, on the basis that its probative value would be outweighed by the danger of unfair prejudice under s 137 of the Act. The email lacks any temporal connection with the charged crime, having been sent eight months prior. The selected passages express the opinions of the deceased.

Dealing with the medical/psychiatric evidence, Mr Desmond submitted that no evidence should be permitted to be led in this regard. He submitted that the psychiatric status of the accused is irrelevant in the trial and that if any evidence is led about his condition at any time, there would a real risk of the jury engaging in impermissible reasoning along the lines that the accused, by virtue of his psychiatric condition, may be the kind of person who would be likely to do what he is alleged to have done in this case. Mr Desmond submitted that all evidence concerning the hospital admissions in 2020 should be excluded as being irrelevant. In the alternative, the evidence should be excluded under s 137 because the admissions would lead to the jury speculating about why the accused was voluntarily admitted and what the diagnosis was.

He submitted that what he called the ‘animus statements’, that is, the unflattering things said by the accused about his mother to those who were treating him during those admissions should also be excluded under s 137 due to the risk of unfair prejudice as these would necessarily introduce the entire psychiatric issue from June 2020 onwards. Mr Desmond relied upon a second reason for exclusion of the animus statements. This was that the statements were made by the accused in the expectation that what was being said was private. They should be excluded by the Court in the exercise of the residual discretion considered in Haddara v The Queen.[25]
[25](2014) 43 VR 53.

In respect of the expressions by the accused of hostility towards his mother during a family meeting with Dr Dhara Perera as set out in paragraphs [40]-[42] of the SPO, Mr Desmond submitted that the material, as with much of the other relationship evidence, lacked any temporal connection with the death of the deceased. None of the statements would ‘prove the actus reus or mens rea of the charge (sic) event’.[26] In addition, the statements were made in a family meeting conducted in a private setting which was conducive to free and open discussions. The accused had both an expectation of and a right to privacy given the nature of the meeting. Furthermore, if the jury heard these statements there would be a risk of their engaging in propensity reasoning, which risk would not be amenable to judicial direction.
[26]Defence outline [19].

As for the so-called misconduct evidence concerning the unwanted intrusions by the accused onto the property of his mother in November 2020 and January 2021, Mr Desmond sought their exclusion on the basis of relevance. These events were not temporally connected with the crime and are not relevant to the identification of the offender, or the existence of a motive. On each occasion, the most he did was cause minor damage or nuisance. He was prepared to go to a certain line and no further. No physical violence was directed towards the deceased. The events were so different in character from the charged crime as to be irrelevant. In the alternative, Mr Desmond relied again on the danger of unfair prejudice to necessitate exclusion under s 137.

In his submissions, Mr Desmond conceded that the admissibility of the Ring video footage would stand or fall on the admission of the events in question.

In respect of evidence indicating the deceased’s fear of the accused, Mr Desmond relied upon the reasoning of Bell J in Paulino in submitting that there was no explicit link between the fear expressed in each case and direct evidence of an assigned basis for the fear. Even the repeated expressions of fear by the deceased in her time spent residing with the Katz family which followed the various unwanted intrusions by the accused onto her property and the installation of enhanced security measures, whilst temporally connected with such events, cannot be said to have a sufficient nexus with the events to warrant admission. He submitted that before there could be said to be the necessary nexus, there would need to be evidence of the deceased having specifically said that she was scared of her son because of one or more of the intrusions, or for some other identifiable reason. He further submitted that a mother’s fear of her son, without more, would not say anything powerful or important about the nature of the relationship between the two.

Turning to the fingerprint evidence, for the purposes of his submissions, Mr Desmond did not challenge the contention that the palm print on the dresser in the deceased’s bedroom was made by the accused. He submitted, however, that the probative value of the evidence is inherently weak or slight. This is because, as he submitted, the evidence as to the regular cleaning of the unit, and in particular the dresser, is ‘particularly weak’.[27] The evidence of the cleaner Haile Selassie does not advance the contention that the top of the dresser was regularly cleaned. As for the evidence of Loraini Kuruisaru, it was weak on the topic of the cleaning of that particular item. She did not use any cleaning product on the glass top of the dresser and applied only light pressure with a cloth for a limited time. The evidence of the finding of the accused’s latent fingerprint would be particularly weak as to when the latent was deposited. A jury could not safely conclude that the print was deposited at the time the offence was committed, there remaining the possibility on the evidence that it was deposited at an earlier time. Mr Desmond did not dispute the relevance of the fingerprint evidence, but submitted that it should be excluded under s 137 in light of the real risk of the evidence being misused.
[27]Transcript 268.

Mr Desmond submitted that for the fingerprint evidence to be used by the jury in considering the prosecution case, there would have to be ‘a level of satisfaction that it was deposited at the time of the killing’.[28] He later described the level of satisfaction required by the jury in respect of the evidence to be a ‘comfortable level’.[29]
[28]Ibid 273.
[29]Ibid 275.

In respect of the one remaining item of hearsay included on the hearsay notice subject to discussion, namely:

It was about this time that Judy stopped seeing Tommy and allowing Tommy access to her home. I can say that the last time Tommy would have been inside her house would have been around May-June 2020[30]

Mr Desmond submitted that the evidence of Diane Katz did not advance the circumstances in which the suggested representation had been made. If there was a representation, there was a lack of detail and clarity as to when it was made. The witness appeared to have blended many conversations together and come up with an impression.

[30]Hearsay notice dated 13 May 2022, Table 1, item 1.

Turning to the entries in the purple diary or exercise book, Mr Desmond conceded the admissibility of some of the entries, or at least parts of them. He submitted that some parts of some of the entries were either vague or in some other way had the prospect of engendering unfair prejudice. As to the entries more generally, Mr Desmond submitted that the decision to be made on the admissibility of relationship evidence and the hospital admission evidence may dictate whether some of the entries should be permitted to be led.

Analysis

It must always be remembered, of course, that a necessary pre-condition for the admission of any evidence, be it relationship evidence or any other variety of evidence, is that it pass the test of relevance set out in s 55 of the Act. Section 55(1) provides:

(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

It has long been the practice of courts in cases of murder and other alleged crimes to admit evidence of the pre-existing relationship between parties where it may have a bearing on the facts in issue in the case. The relationship evidence may extend to evidence of previous violent or discreditable acts by an accused person. Such evidence has been admitted to prove motive or to establish the intent of an accused, or to negative a defence of accident, self-defence or provocation. It may also be used to point to the identity of the offender, as was the case in The Queen v Clark.[31] As noted by Winneke P in Anderson, admission of evidence of relationship of the type which was admitted in that case, and for the purpose for which it was admitted, ‘has a substantial pedigree’.[32]
[31][2001] NSWCCA 494 (‘Clark’).
[32]Anderson [31].

The seminal case in Australia supporting the admission of relationship evidence is Wilson. In that case, the wife of the accused had been killed by the discharge of a shotgun which the applicant claimed was accidental. Evidence of the troubled relationship between them and the deceased’s utterances to the applicant on two occasions were admitted. On one of the occasions, the deceased was overheard to be crying and saying to the applicant, ‘I only know you want to kill me for my money’. On the second occasion, after a minor incident concerning the duco of a motor vehicle, the deceased was heard to say to the applicant, ‘I know you want to kill me, why don’t you get it over with? Barwick CJ explained the admissibility of the utterances as follows:

It is not, in my opinion, only in those cases where the evidence of the relations with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence or, as in this case, to assist the choice between the two explanations of the occurrence, then, in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance, it is inadmissible. …It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn. …Here the evidence was of quarrelling and bad relationship over a considerable period stretching up to the time of the death of the deceased. In my opinion, the evidence of the relations which had developed between the applicant and his wife was admissible.[33]

[33]Wilson 339.

In respect of the contention that the statements by the deceased as to what she considered the appellant’s attitude to her to have been were inadmissible, his Honour said:

In this case the evidence of the statement was part of the evidence of a quarrel between the parties and, indeed, the words spoken in the course of that quarrel were indicative of the nature of the quarrel and of the levels which the mutual relationship of the parties had reached.[34]

[34]Ibid 340.

Menzies J, in whose reasons for judgment McTiernan and Walsh JJ agreed, said:

It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence – which rests fundamentally upon the requirement of relevancy; i.e. having a bearing upon the matter in issue – to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.[35]

[35]Ibid 344.

Owen J noted, of the utterances of the deceased admitted into evidence:

The learned trial judge was at pains to direct the jury that these statements were not to be treated as any evidence of the fact that the applicant did wish or intend to kill his wife but could be used only to show that the relationship between them was one of enmity. Notwithstanding the submissions of counsel for the applicant that such evidence was inadmissible, I have no doubt that evidence of the relationship between the wife and the applicant was relevant in considering whether the former’s death was due, as the applicant claimed, to an accidental discharge of the gun or whether, as the Crown alleged, it was due to his deliberate act.[36]

[36]Ibid 346.

In Basham, Taylor J, having considered Wilson and Clark, in the latter of which cases Heydon JA very exhaustively summarised the relevant authorities, stated:

Thus evidence of prior acts of violence by the accused to the deceased, prior threats of violence by the accused, statements made by the deceased of fear of the accused and evidence of arguments and hostility beyond what might be expected in a ‘normal’ relationship have all been admitted as relevant relationship evidence.[37]

[37]Basham [96] (citations omitted).

In Clark, Heydon JA, in considering the admissibility in the trial of various items of evidence illustrating the nature of the relationship between the appellant and the deceased, stated:

In short, the question is whether the assessment of the probability of the existence of a fact in issue in this case is rationally affected by items of evidence that the deceased did not like the appellant; was very scared of the appellant; because of being scared said to a friend that if she disappeared the matter should be reported to the police; predicted that the appellant would kill her; and said that the appellant was giving her a hard time. In the particular circumstances of this case, the answer is affirmative.[38]

[38]Clark [146].

The central issue in dispute in the trial before me will be the identity of the person who killed the deceased. As earlier noted, at the heart of the Crown case is the contention that between June and December 2020, the accused’s relationship with the deceased, which had always been fragile, completely broke down. It is contended that he blamed his mother for the four admissions to Frankston Hospital in the second half of 2020 and was extremely angry towards her. There arose in him a motive to kill her. The poor relationship is relied on in proof of the existence of a motive, and in direct proof of the fact that he was the person who killed the deceased.

In order to prove its case, the Crown seeks to be able to lead evidence from a number of sources and of varying types to demonstrate the true nature of the relationship between the accused and the deceased at the time she met her death.

It was not contended by Mr Desmond that evidence of the poor relationship between the accused and the deceased is not relevant. What he sought to do, however, was to limit evidence of the relationship to events in 2021 preceding the death of the deceased. He sought the exclusion of all events touching on the nature of the relationship from any earlier than the start of 2021. The problem with such an approach is plain to see, in my view.

A jury denied any information about the nature of the relationship earlier than 2021 would be dealing with a wholly unrealistic situation. They would have no opportunity of understanding the reasons for the deterioration in the relationship and the progression of the deterioration. They would be unable to realistically assess the extent to which the relationship had deteriorated, that is, to fully appreciate the possible or likely level of the ill feelings of the accused towards his mother. A jury in that situation, acting in an unreasonable vacuum and denied the information that may make the nature of the relationship understandable, would be in no position to sensibly evaluate the prosecution contention that the relationship had sunk to such depths that the accused had developed a motive to harm his mother, and that he is the person who killed her.

Before I turn to consider the admissibility of evidence touching on the relationship between the accused and the deceased historically, I will commence by considering the four hospital admissions in 2020 which are critical in the prosecution case.

In my view, it is perfectly clear that for the jury to have any realistic understanding of the nature of the relationship between the accused and the deceased in 2021, the four involuntary admissions of the accused to Frankston Hospital must be before them. Those admissions, the way in which they came about, and the things said by the accused to doctors and others during and after the admissions showing his negative feelings about his mother, and the extent to which he blamed her for the admissions, are an integral part of the Crown case.

Mr Desmond submitted that no evidence should be permitted to be led concerning the psychiatric condition of the accused. He submitted that the psychiatric status of the accused is irrelevant in the trial. He further submitted that all evidence of the hospital admissions is irrelevant and should be excluded on that basis. In the alternative, the admissions should be excluded under s 137.

In my view, the admissions are clearly relevant as reflecting upon the relationship in question, because the admissions were allegedly a critical component in the rapid deterioration in the relationship thereafter. The prosecution do not need to prove the diagnosis reached in respect of the accused in those admissions, and has indicated that it would not seek to do so if the admissions are permitted to be led and the defence do not want there to be evidence of the diagnosis. Whether that would be a realistic and appropriate way for things to proceed is another matter. In making his alternative submission that the hospital admissions should be excluded under s 137 , the danger of unfair prejudice pointed to by Mr Desmond was that the jury may speculate about why the accused was involuntarily admitted. That may be so if the jury are denied the information about what the diagnosis was. In my view, however, there is no reason why they should be denied such knowledge. If the jury were told in brief terms what the diagnosis was, which was noted by the admitting psychiatry registrar on the occasion of the 28 July 2020 admission to be that the accused was suffering from an early relapse of schizoaffective/bipolar disorder,[39] then there could be no risk of speculation.
[39]SPO [28].

I should say that insofar as Mr Desmond justified the exclusion of all of the psychiatric evidence concerning the accused on the basis of the risk of the jury engaging in propensity reasoning, I do not accept that submission. This is a long way removed from a situation in which a jury exposed to the fact of there being earlier uncharged acts of violence committed against his eventual alleged victim by a person charged with murder may be inclined to reason that because of that proven poor or criminal conduct, the person may be the kind of person likely to have carried out the murder. Here, no aspect of the psychiatric history of the accused, be it in 2020 or earlier, is in any way to his discredit, and nor would it diminish his character in the eyes of a sensible jury. Furthermore, in no way would the prosecution contend in the trial that the psychiatric illness of the accused, from which he has suffered for periods in his life, was a direct contributor to his murder of his mother. It will not be contended that any mental impairment was a factor in his alleged crime. Rather, the motivation for that crime was his resentment, indeed, hatred of the deceased. If evidence was permitted to be led about the hospital admissions or any other aspect of the psychiatric condition of the accused, judicial directions would make it plain to the jury that in no way would they be permitted to hold it against the accused that he had that history. It would be crediting a prospective jury with little sense to suppose that they may fail to abide by those directions and misuse any such evidence.

The hospital admissions being relevant and admissible, it is clear, also, that the things said by the accused during and after those admissions pointing to his negative feelings towards his mother, are relevant. Nor would there be any reason for these statements to be excluded as a matter of law under s 137 or under the Haddara discretion. There would be no unfair prejudice attaching to the statements if the reality is that some of the psychiatric history of the accused would necessarily be before the jury. And when the accused spoke, he did not do so with any expectation of privacy.

Once it is acknowledged that the hospital admissions and animus statements are admissible, the answer to the question of the admissibility of a number of the other challenged areas or items of evidence is made clear.

The concerning messages sent by the accused to family and friends were an important part of the mechanism by which he ended up subject to involuntary admissions on four occasions, and the deceased’s involvement with the authorities following on from those messages may seemingly be the reason why he held those admissions so much against his mother. The sending of the messages and the reactions of the deceased and others to them is a relevant area of evidence. To what extent the content of the messages would need to be before the jury would be a matter for discussion and perhaps agreement between the parties.

Looking back further into the background of the relationship between the accused and his mother, the rapid deterioration in the relationship in 2020 and 2021 cannot really be properly understood without some knowledge of what the relationship was like earlier in the accused’s life. If a jury, contemplating the assertion by the Crown that the involuntary hospital admissions were a trigger for a dramatic worsening of the relationship, had no knowledge of the fraught nature of the relationship over many years – were denied, so to speak, any knowledge of the baseline of the relationship before the admissions – then the prosecution case may seem to make little sense.

Ms Locke submitted that it would be entirely artificial to separate the accused’s mental health history and the longstanding animus between him and the deceased from the events of 2021. I agree. I also accept that the relationship going back even decades is relevant to understanding the starting point of the relationship in 2020 when it descended further, and that evidence about the earlier troubled relationship is necessary to place the events from mid-2020 until the death of the deceased in an accurate context. Some of that material speaks to the depth of the grievances held by the accused, and why it may be that he was, as alleged by the Crown, moved to the terrible decision to kill his mother.

For the reasons I have stated, the fact of the accused having spent some time living with foster parents is of some relevance. Amongst other things, it was the way in which he came to meet Cohen who was his foster-brother for a time. In my view, the Crown should be permitted to lead that evidence, and evidence of the development of and then deterioration in that relationship with Cohen. In circumstances where Cohen played an important role in some of the hospital admissions, and in providing assistance to the deceased, not to mention the fact that it is expected that he may be accused of being the real killer, it is clear that the prosecution should be permitted to open and then lead evidence about this relationship.

As for the excerpts from A Rasta’s Tale, I do not accept that they are irrelevant. For the reasons submitted by the Crown, a number of them should be permitted to be led. The accounts of historical matters related in the extracts would not be relied upon by the Crown as evidence of their truth, but rather, as reflecting an account, written by the accused as a mature adult at a time during which there is no evidence he was not psychiatrically stable, about how he felt about his mother over the years, showing that whilst their relationship may have appeared satisfactory for some years, he had grievances against her which were as long-held and powerful as they were well hidden. I will not permit the name of the book to be placed before the jury. Nor will I permit the Crown to prove the extracts on pages 294-5, or 346. As for the other extracts, not all of the content should be led, and I would suggest the parties discuss the prospect of evidence being placed before the jury without the need for the actual extracts to be proved. I will rule further on this if called upon to do so.

I turn now to the acts of misconduct by the accused by way of his unwanted intrusions onto the property of his mother. As noted by the Crown, other misconduct evidence is regulated by Division 2 of Part 4 of the Jury Directions Act 2015 (‘JDA’). Section 15 of the JDA defines other misconduct evidence in part as:

(c)evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue; or
(d)evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed;

Sections 27 and 29 of the JDA set out directions which may be sought by defence counsel or the prosecution in connection with the use of such evidence.

I do not accept that these acts by the accused were not temporally connected with the alleged crime. They were. Nor do I accept that these events were so different in character from the charged crime as to be irrelevant. I accept the Crown submission that these were key events in the relationship arc. These intrusions occurred only months before the death of the deceased, in the aftermath of the hospital admissions. These were unusual and intimidating acts by the accused towards his mother showing the extent to which the relationship had broken down. They would go directly to the hostile feelings the accused had for his mother at the time of the intrusions, which is relevant to the prospect of a motive, and directly relevant to the identity of the killer. In my view, these events would be clearly relevant for that reason. In addition, these events would also have relevance to the fear expressed by the deceased of the accused after that time, and the question whether she would have seen fit to permit him to come into her home, which would in turn be relevant to the significance of the fingerprint evidence. The Crown have made it clear that in no way would the events be sought to be relied upon in a tendency or coincidence sense. In my view there is no risk that a jury would use them in such a fashion. Appropriate judicial directions would make sure of that. There is no reason why the evidence should be excluded under s 137.

I come now to the question of the admissibility of evidence from a number of sources as to the fear of the accused expressed by the deceased. Most important amongst the evidence would be the expressions of fear made repeatedly by the deceased to her good friend Mrs Katz while she was staying with Mr and Mrs Katz in 2021. Relying largely on the reasoning of Bell J in Paulino, Mr Desmond submitted that there was not the required nexus or link between the fear expressed by the deceased and some event or events in the past to justify admission. He submitted that before there could be said to be the necessary nexus, there would need to be evidence of the deceased having specifically said that she was scared of her son for a particular identifiable reason. I do not believe the submissions of Mr Desmond reflected the applicable law. In any event, if the sort of specificity spoken of by Bell J is indeed required, it is present in this case.

The period of time during which the deceased was staying with the Katz family was preceded by some months of a sharply deteriorating relationship between the deceased and the accused marked by the four hospital admissions during which he strongly expressed his disdain for her, the acts of misconduct which were calculated to cause, and clearly did cause great concern to her, and the security measures she progressively put in place to protect herself due to her increasing concerns. No doubt these matters would not represent the full picture of the relationship, but they are sufficient to make her expressions of fear to Mrs Katz understandable.

As for the earlier expressions of fear to Mr Richardson in the email sent in September 2020, to the Clinical Director of Peninsula Mental Health in January 2021, and to Mr Katz in 2020, these statements were made by a mother who had lived through a fraught relationship with her son over many years, had a FVIO in place against him, had knowledge of the circumstances of three or more of the four hospital admissions in 2020, and had made arrangements in August 2020 to have the Ring doorbell system installed. The fear expressed by the deceased was well understandable and related at least in part to identifiable events.

In my view, in the context of all of the other evidence pointing to the true nature of the relationship between the accused and the deceased, the strong fears expressed by the deceased to others, extending to expressions of concern that he may kill her, on the face of it admissible under s 66A of the Act, are telling indicators of the depths to which the relationship had sunk by the time the expressions were made. The evidence is relevant for that reason.

In addition, the deceased’s expressions of fear would be admissible for another reason. If she had such fear of the accused, it would be unlikely that she would have permitted him at any time, from the time she commenced to fear him, to enter her home. This would be relevant to the weight to be attached to the finding of the palm print of the accused on the dresser in the deceased’s bedroom, an area of evidence to which I will now turn.

In seeking to exclude the fingerprint evidence, the relevance of which he did not challenge, Mr Desmond, respectfully, made a submission that did not accord with the way in which circumstantial evidence works in a criminal trial. Unfortunately, in the running, I said something that may have given credence to this misconception. In dealing with the fingerprint evidence as an item of circumstantial evidence, Mr Desmond submitted:

In a circumstantial case where you’re collecting all the jigsaw pieces, how do they use one jigsaw piece or can they use one jigsaw piece if they’re not satisfied the print was deposited at the time of the incident? It’s not a jigsaw piece that can be used by them.[40]

[40]Transcript 276.

In response to that contention, I said, ‘Yes, that’s right. They wouldn’t use it’.[41] That was incorrect.
[41]Ibid 276.

Mr Desmond’s contention would make it seem that in assessing a circumstantial case, a jury would be required to assess the individual piece of evidence – the pieces of the puzzle so to speak – and see what they could establish. So, as he would have it, the fingerprint evidence could only be used by the jury if they were satisfied to some level at least, described by Mr Desmond at one point as ‘a comfortable level’,[42] that it was deposited at the time of the killing. That is clearly not the case. For a jury to be satisfied to some degree that the palm print had been deposited at the time of the killing would be for them to be satisfied to some degree of the guilt of the accused. That is not how circumstantial evidence works.
[42]Ibid 275.

In a circumstantial case, a jury is required to assess the entirety of the case in order to determine whether the prosecution has discharged the onus resting on it. That means looking at the entirety of the assemblage of items of evidence – of pieces of the jigsaw puzzle, so to speak – and determining whether the overall picture is one of guilt.

The palm print found on that dressing table is but a small part of the overall circumstantial case relied upon by the Crown. The overall case comprises evidence from many sources, of many types, pointing to the accused being the person who murdered the deceased. One item of evidence is the palm print. It was found on the top surface of a dressing table in the bedroom of the deceased only a very short distance away from where her body lay. Evidence would indicate that for some months, at least, the accused had not been permitted inside the unit. The deceased was frightened of him, and had taken a number of steps to increase security at the premises, including changing the locks and installing a CCTV system. In the time since he had been denied entry to the premises, the bedroom of the deceased, along with the rest of the unit, had been subject to thorough cleaning once a fortnight by a professional cleaner who has given evidence that she took considerable pride in her work and carefully cleaned all areas including the top of the dresser upon which the print was found. As well as that, the deceased herself was apparently quite a fastidious housekeeper.

Mr Desmond described the evidence of Ms Kuruisaru about the cleaning of the unit, and in particular the dresser, as being ‘particularly weak’.[43] As he put it, a jury could not safely conclude that the print was deposited at the time of the killing, there remaining the possibility it was deposited at an earlier time. Ms Locke took issue with that contention.
[43]Ibid 268.

The fact is, for proper use to be made by a jury of the fingerprint evidence, there would not need to be any conclusion that the print was deposited at the time of the killing. A jury would be entitled simply to view that item of evidence as a mere part of the overall circumstantial case. They would not need to reach any conclusion specifically about that piece of evidence. That is not to say, however, that the evidence may not be of assistance to them in deciding the overall case.

I do not accept that the probative value of the fingerprint evidence is inherently weak. In fact, the evidence may be considered to have significant probative value. It is true that some criticisms were made by Mr Desmond of the evidence. Those criticism are for the jury to assess. It would be for a jury to determine what to make of the evidence in the context of the overall case.

In my view, not only is the fingerprint evidence relevant, but there would be no basis for its exclusion under s 137. There is no prospect of a jury misusing the evidence. They would know it is but a small part of the Crown case. They would understand the defence criticisms of the evidence. They would be in a position to use the evidence in an appropriate fashion according to their inclination.

Turning to the one remaining item of hearsay evidence, that is, a supposed representation by the deceased to Mrs Katz that she had stopped allowing the accused into her premises in the middle of 2020, for the reasons advanced by Mr Desmond, I do not believe the evidence had the level of precision or specificity as to timing or content which would warrant admission under either of the relevant limbs of s 65(2) of the Act. That is not to say, of course, that the prosecution may not be able to prove through other means that the deceased did not permit her son into her home from a particular time.

In respect of the entries in the purple diary or exercise book, I will leave it to the parties to discuss which parts should be led consistent with this ruling, and in particular, the portion of the ruling concerning the admissibility of relationship evidence. I will be happy to rule on any matters in respect of which agreement cannot be reached.

Conclusion

For the reasons I have endeavoured to make clear, I rule that the relationship evidence generally is relevant and admissible. This includes a number of items or areas of evidence to which I have made specific reference in this ruling. The admissions of the accused into Ward 2 West, the way in which those admissions came about, and the negative statements made by accused about the deceased during and after those admissions, including during the family meeting on 13 November 2020, are admissible. It will be a matter for discussion between the parties whether, and if so, to what extent, any diagnosis reached as a result of those admissions, or indeed, earlier in the life of the accused, should be placed before the jury. The acts of misconduct sought to be led by the Crown are admissible. The evidence of the fear held by the deceased of the accused is admissible. The fingerprint evidence is admissible. The one item of hearsay evidence remaining is not admissible.

If there are other matters which remain unclear or upon which agreement between the parties cannot be reached, I will be content to further rule as required.

[2022] VSC 655

31 October 2022