Director of Public Prosecutions v Cooling (Ruling No 1)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0027

DIRECTOR OF PUBLIC PROSECUTIONS

AARON COOLING

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2019
DATE OF RULING:	6 September 2019
CASE MAY BE CITED AS:	DPP v Cooling (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2019] VSC 603

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CRIMINAL LAW – Evidence – Hearsay – Maker of representations unavailable to give evidence – Whether representations were made ‘shortly after’ the asserted fact occurred – Whether representations made in circumstances that make it highly probable that they are reliable – Evidence Act 2008 ss 65(2)(b), s 65(2)(c) and 137.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K Doyle	Mr J Cain, Solicitor for Public Prosecutions
For the Accused	Mr C Thomson	Victorian Aboriginal Legal Services

HIS HONOUR:

The accused, Aaron Cooling, has been charged that he did, at Shepparton between 19 and 20 May 2018, attempt to murder Clint McKindley and intentionally cause injury to Adrianne Filliponi. He has also been charged, in the alternative, with intentionally or recklessly causing injury to Mr McKindley and recklessly causing injury to Ms Filliponi.

The matter is listed for trial in the Supreme Court at Shepparton on 23 October 2019.

Clint McKindley died on 1 October 2018 of an apparent drug overdose. He was unavailable to give evidence and be cross-examined at the committal which was held on 30 January 2019. Ms Filliponi did give evidence at the committal and resiled, at least in part, from her earlier account. The alterations of her account are based upon the uncertainly of her recollection and the amount of drugs and alcohol she had consumed. Whether or not the prosecution will be able to ‘restore’ her evidence at trial is moot.

In Ms Filliponi’s original statement, her version of events did support the version given by Mr McKindley, to some extent.

By notice dated 22 July 2019, the prosecution gave notice that it intended to adduce hearsay evidence as set out in the attached tables, marked Annexure A. That notice replaced notices dated 30 May 2019 and 19 July 2019. The change in the notices is that the 19 July 2019 notice added representations 42–46 and the notice of 22 July 2019 expanded representation 32. They all relate to the representations made by the witness, Clint McKindley.

The representations fall into four categories:

1. Representations made in a recorded interview between Clint McKindley and Detective Leading Senior Constable Paul Van Emmerik commencing at approximately 2:30am on 20 May 2018 at Shepparton Goulburn Valley Hospital (Recorded Representation).

2. Representations made in a statement taken by First Constable Samuel Harper at the Shepparton Goulburn Valley Hospital signed at 4:17 am on 20 May 2018 (Representations 1- 41).

3. Representation made to Senior Constable David Erdmann and Senior Constable Mark Eade at about midnight on 19 May 2018 at 30 Regent Street, Shepparton (Representation 42).

4. Representations made to Senior Constable Mark Eade at about midnight on 19 May 2018 at 30 Regent Street, Shepparton (Representations 43–46).[1]

[1]Although representations 42, 43, 45 and 46 are said to have been made in the statement of Senior Constable Mark Eade ‘signed at 3:35am and dated 19 May 2018’, it appears that Senior Constable Mark Eade’s statement contains errors as to the date of certain events and as to the date of the signing of his statement. When looked at, the reference to receiving a message to attend 30 Regent Street should read ‘11:55pm on the 19^th of May 2018’ and his statement should have borne the time and date “00035am on 20/05/2018”.

It is also submitted that the representations 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 32 and 33 are coextensive with the recorded representations. If I rule any of the representations admissible, the form in which they might be tendered to the jury will have to be worked out by the parties.

It is common ground between the parties that Clint McKindley is dead and that the representations are largely relevant, although particular representations may be objected to on the ground of relevance.

The prosecution relied upon the representations being admissible as they come within the exceptions set out in s 65(2)(b) and s 65(2)(c) of the Evidence Act 2008 (‘the Act’):

(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—
…
(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 …

Although ultimately the representations will have to be considered individually, they may be summarised as Mr McKindley’s description of the alleged attack upon him by the accused.

The accused submits that the representations do not come within the exceptions because they were not made:

shortly after the asserted fact occurred in circumstances that make it unlikely that the representation is a fabrication;[2]

and that it cannot be shown that the representations were:
made in circumstances that make it highly probable that the representation is reliable.[3]

[2]Section 65(2)(b) of the Act.

[3]Section 65(2)(c) of the Act.

It is the prosecution’s submission that it is accepted in Victoria[4] that what was said by the Full Federal Court of Australia sitting on an appeal from a trial in the Supreme Court of Australian Capital Territory in Williams v The Queen[5], accurately sets out how s 65(2)(b) is to be interpreted.
[4]See Bufton v R [2019] VSCA 96 [42].
[5][2000] FCA 1868; (2000) 119 A Crim R 490 (‘Williams’).

It was submitted by Mr Thomson, of counsel, who appeared for the accused, that the representations should not be admitted because they could not be shown to be made ‘shortly after’ the asserted fact occurred as that expression has been interpreted by the Court. Mr Thomson took up the theme which had emerged from the cases that the time which elapsed between the alleged events and the making of the representations was such that it allowed ample time for the ‘fabrication’ of a version of the events, in particular, that Mr McKindley was not the original aggressor.

It was also submitted that it could not be demonstrated that the representations were made in ‘circumstances that make it highly probable that the representation is reliable’.[6]
[6]Section 65(2)(c) of the Act.

The law as to the interpretation of s 65(2)(b) has developed substantially, dependent upon what was said by the Full Federal Court in Williams where Whitlam, Madgwick and Weinberg JJ said:

… it would be a mistake, in determining whether a statement has been made ‘shortly after’, to over-emphasise such matters as whether the events in question were ‘fresh’ in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (‘when’) or under the proximate pressure of (‘shortly after’) the occurrence of the asserted fact. In Conway the statement in question was made by a murder victim who said, while observed to be looking ‘terrible’, that she had been drugged and had been ‘off her face for about three or four hours’. The comments of the Court in Conway regarding the meaning of ‘shortly after’ should be understood accordingly. The approach taken in Conway to s 65(2)(b) as a whole is consistent with such a reading of that case.[7]

[7]Williams [2000] FCA 1868; (2000) 119 A Crim R 490 [48].

The importance of what the Full Federal Court had said in Conway v R[8] was that a fairly liberal interpretation has been given to the words ‘shortly after’.[9]
[8](2000) 172 ALR 185.
[9]Ibid 217 [115]–[137].

The representations being considered in Williams had been made five days after the alleged events and the Full Court considered that they had not been made ‘shortly after’. It was in that context that the Court said what is set out above.

In this case, it is common ground that the Mr McKindley was stabbed a number of times by the accused. What is in contention is the question of who was the original aggressor. That, it is submitted, could give rise to the defence of self-defence. There is no evidence, at the moment, which would give rise to that defence but I am prepared to proceed on the basis that at trial there will be.

The timing of events appears to be:

19 May 2018
·23:53 – Troy McKindley calls the police because he could hear yelling next door at his brother’s unit;
·23:56 – Senior Constable Mark Eade and Senior Constable David Erdmann receive a call from the tasker to attend 30 Regent Street;

20 May 2018
·00:00 (approximately midnight) – Senior Constable Mark Eade and Senior Constable David Erdmann arrive at 30 Regent Street (further police units were requested and arrive no long after);
·00:15–00:25 – Approximate time ambulance arrives according to Senior Constable Mark Eade who stated at the committal that the ambulance arrived 15-20 minutes after he and Senior Constable David Erdmann had got to the address;
·00:45 – Triage of Mr McKindley at Shepparton Goulbourn Valley Hospital;
·00:47 – Mr McKindley is seen by his treating doctor;
·00:56 – Leading Senior Constable Paul Van Emmerik attends the crime scene.
·02:22 – Leading Senior Constable Paul Van Emmerik attends the Shepparton Goulbourn Valley Hospital and liaises with Senior Constable Harper – The recorded conversation with Mr McKindley occurs around this time.
·11:23 – Mr McKindley is discharged to the Alfred Hospital for further treatment.

Mr McKindley was observed to have the following injuries:

·Five superficial neck and face lacerations including:
·Left back of the (posterior) neck wound with subcutaneous emphysema (air in the tissues under the skin as a result of the penetrating trauma).
·Right back of the (posterior) neck.
·Right front of (anterior) neck.
·Right anterior chest wall wound.
·Left back of the (posterior) shoulder: deep left laceration above the shoulder blade bone (suprascapular).
·Multiple right arm and forearm lacerations:
·One overlying the shoulder (deltoid) muscle.
·One overlying the muscle extending the elbow (triceps).
·Left forearm superficial wounds over the wrist aspect on the side of the little finger (left ulnar wrist).
·Right forearm wounds (two) to the deeper fascia structures with swelling and blood collection (haematoma).
·Left hand wound overlying the second middle hand (metacarpal) bone.

It is evident that Mr McKindley was spoken to by the police at the hospital a few hours after the event. He had, in the meantime, been treated at the hospital for the above injuries.

The submission that the delay gave rise to the risk of fabrication was based, in part, on the proposition that Mr McKindley was intending to exculpate himself and therefore avoid any mention that he started the confrontation. That of course is, in turn, based upon the defence’s position that Mr McKindley started the fight.

In argument, Mr Thomson seemed to regard the interview with Mr McKindley at the hospital as an interview of a suspect. I do not take that to be the case. I am satisfied that it was an interview designed to find out what happened. That contention is supported by virtue of the fact that what occurred next was the taking of the witness statement.

In this case, the police were dealing with a person who had been stabbed a large number of times, although many of his injuries were superficial. After the arrival of the police and ambulance Mr McKindley was taken to hospital where he was treated. The police sought to obtain from him a version of events. That version was first recorded and shortly afterwards, a statement was taken.

I am satisfied that the circumstances are such ‘that make it unlikely that the representation is a fabrication’.[10]
[10]Section 65(2)(b) of the Act.

I am satisfied that the representations were made ‘spontaneously during (when) or under the proximate pressure of (‘shortly after’) the occurrence of the asserted fact’.[11]
[11]Williams [2000] FCA 1868; (2000) 119 A Crim R 490 [48].

It is necessary to deal with the representations separately but all that was represented does provide the contexts of each representation and, in that sense, the manner in which they produce a narrative.

The hearsay notice is annexed to this ruling as Annexure A. The representations are identified by reference to a statement taken by First Constable Samuel Harper on 20 May 2019, signed at 4:17 am. Where the representations or a similar representation was made in the recorded conversation between Mr McKindley and Detective Leading Senior Constable Paul Van Emmerik, reference is made to the transcript.

In addition, representations 42–46 were added to the amended hearsay notice of 22 July 2019. Those representations relate to what was said to, or overhead by, Senior Constable David Erdmann and Senior Constable Mark Eade who were the two police officers to have attended the scene.

The accused did not contend that representations 42–46 did come within the ambit of s 65(2)(b) as having been made when or shortly after the asserted fact occurred.[12]
[12]Ibid.

Representations 1–15 are not in issue and simply provide the background narrative to later events. Representation 14 is challenged in so far as Mr McKindley said ‘I only had about 4 for the whole night …’. I see no reason why this representation should not be admitted as part of the narrative, but it would be appropriate to warn the jury about the notorious weakness of assertions about consumption of alcohol.

It follows that representations, 16 to 41, fall to be considered. Representations 37, 38, 39 and 40 are challenged on the basis of relevance. Nothing much turns on representations 37, 38 and 39. They are of only of marginal relevance and I would exclude them. It seems to me that representation 40 is relevant.

The various representations set out what Mr McKindley said about what had occurred, what he had done, what had been done to him and what he had seen and heard.

I have considered each representation and I am satisfied that representations 16–32, 34–36, 40 and 41 should be admitted in evidence. Whether representation 33 comes within s 65(2)(b) of the Act, or not, does not matter because I would be inclined to exclude at my discretion and I do so.

In written submissions, the accused submitted the circumstances in which the representations made fabrication likely. In part it said:

(a)McKindley’s interest in presenting himself as the victim rather than the aggressor in the fight;
(b) McKindley’s assertion to police that before any conflict took place, he thought It’s gunna come down to, you know, a fight to the death here, you know, one of us is gunna die, you know. That’s what I felt...
(c) The alcohol and drugs consumed by McKindley in the hours before the representations;
(d) The long-term abuse by McKindley of illegal drugs and prescription medication;
(e) The criminal history of McKindley including 2015 convictions for assault and damaging property, 2011 convictions for carrying a controlled weapon and references in the criminal record to the need for counselling for drug and mental health issues;
(f) In the hours before the relevant events neighbours heard yelling and thumping coming from McKindley’s premises indicating a much more protracted altercation than asserted by McKindley;
(g) The various warnings on the police database concerning McKindley’s address including 2015 warnings concerning a psychiatric risk/ suicide or self-harm and an earlier arson related offence, plus a 2012 warning concerning carrying weapons;
(h) The seeming fascination of McKindley with knives;
(i) The assertion by McKindley at the Goulburn Valley hospital that he was attacked by 2 male persons;
(j) The inability of crime scene investigators to draw any conclusions as to what happened at McKindley’s house because of the amount of blood and number of weapons involved,
(k) The lack of corroboration from the other known person in the house, Filliponi, who went to sleep with the Accused and McKindley talking in a friendly fashion and woke up to find a struggle going on between them;
(l) The lack of corroboration of the essence of the hearsay representations in the form of other direct or forensic evidence.

I am not satisfied that all of those matters are ‘circumstances’ as s 65(2)(b) requires, but even if they were, they do not seem to me to lead to the conclusion that they make fabrication likely. It is for the prosecution to demonstrate that it is ‘unlikely that the representation is a fabrication’.[13] I have already set out above the circumstances in which those representations were in fact made. I am satisfied that each of them is unlikely to be a fabrication.
[13]Section 65(2)(b) of the Act.

It was argued, in the alternative, that I was obliged to exclude the evidence because the risk of unfair prejudice would outweigh the probative value. I have taken that submission to apply to all of the hearsay evidence.

In this case, I regard the evidence as being highly probative and since much of it relates to what happened when the wounds were inflicted upon Mr McKindley and what followed these events, they are not particularly contentious. What is in issue are the descriptions of the events leading up to the ‘attack’ on Mr McKindley.

The criticism largely centres on what was in representations 16 and 17 because in these representations the accused is the aggressor without any action having been taken by Mr McKindley.

The defence at the trial is said to be that of self-defence and it is submitted that the absence of any opportunity to cross-examine Mr McKindley gives rise to unfair prejudice.

I am not satisfied in the circumstances of this case that that is so. Although it is not clear exactly what evidence Ms Filliponi might give, she will, as matters stand, be called at the trial. A large body of evidence going to the credit of Mr McKindley is available, including evidence which is capable of showing that he behaved violently in the past. Given the overall nature of the case and particularly the imbalance in the injuries suffered by the accused and Mr McKindley, I do not accept that the mere assertion that Mr McKindley has potentially omitted that he might have been the original aggressor is all that critical.

It was accepted by the accused that the prosecution can prove that Mr McKindley was injured and probably by the accused. It is submitted that the critical issue is whether the prosecution can prove that the accused was not acting in self-defence.

It is not clear to me how it is that the fact that the Mr McKindley might have been the original aggressor is necessarily relevant to the question of conviction. There is little, if any, evidence of any injuries suffered by the accused in the supposed attack. Any question of self-defence (not yet raised on the evidence) would, in any event, be subject to the accused’s response being a ‘reasonable response in the circumstances as the person perceives them’.[14] The standard a reasonable belief is based upon ‘the standard of a reasonable person who was not intoxicated.’[15]
[14]See Crimes Act 1958 s 322K.
[15]See Crimes Act 1958 s 322T(2).

I will not exclude the evidence under s 137 of the Act.

The prosecution did not particularly place any reliance upon s 65(2)(c) of the Act and no submissions were made in reply. I would not, without deciding the matter, exclude the possible admission of the representations on the basis of s 65(2)(c).

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TABLE A – Particulars of the Previous Representation

REPRESENTATION	DATE	TIME	PLACE	CIRCUMSTANCES	NAME OF WITNESS(ES)
The prosecution relies on all representations made in the recorded interview between Clint McKindley and Detective Leading Senior Constable Paul Van Emmerik commencing at approximately 2.30 am on 20 May 2018, excluding representations made on pages 43-46 of the transcript. These representations are mirrored in the signed statement of the witness which representations are set out below.	20 May 2018	2.30 -3.00 am	Shepparton Goulburn Valley hospital	Representations made in recorded interview between Clint McKindlay and Detective Leading Senior Constable Paul Van Emmerik commencing at approximately 2.30 am on 20 May 2018	Clint McKindley Senior Constable Paul Van Emmerik
1. On Saturday the 19th of May 2018 I was sitting at the corner of Maude Street and Vaughan Street, Shepparton outside of Coles. R.C Tr: p7, 8, 9	20 May 2018	4.17 am	Shepparton Goulburn Valley hospital	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
2. At about 2 pm, a female who I now know as Adrienne came over to me a and asked for a cigarette. I was rolling one for myself so I said no worries and started rolling one up for her. R.C Tr: p9	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
3. I struck up a conversation with her and she said that her and her boyfriend had been living on the streets. R.C Tr: p9	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
4. She had a shopping trolley full of clothes and stuff, so I could tell she was homeless. R.C Tr: p9	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
5. Her boyfriend came over, who I now know as Aaron.	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
6. They were talking about how they had nowhere to stay so I thought I'd try and give them somewhere to stay while they organised crisis accommodation.	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
7. She had a white phone which they said was flat. I was apprehensive about it but thought I'd do the right thing and invited them over so she could charge her phone and they could get somewhere to stay. R.C Tr: p 10	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
8. We walked to my house at 30 Regent Street, Shepparton. R.C Tr: p 10	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
9. In my lounge room I had a coffee table which had some pens on it, my nail clippers and my pocket knife which has brass ends, a wooden middle and a chrome blade which pulls out. The blade is about 2 inches long. R.C Tr: p 4	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
10. We moved the coffee table into the kitchen and dragged a mattress out into the middle of the lounge room. R.C Tr: p 13	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
11. We were watching a movie and got about 3/4 through before we put on some music instead. R.C Tr: p 13 (reference to listening to music)	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
12. We started having some drinks and they had a couple of goes at calling the Crisis accommodation, but they didn't have a hot crack. R.C Tr: p 10 (reference to charging up the phone to try crisis accommodation but they didn’t bother, reference to drinking )	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
13. We sat and listened to music for a while, just hanging out. They were back and forth from the lounge to the kitchen getting more drinks. R.C Tr: p 13	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
14. At one stage Aaron fell asleep and Adrienne went out. She came back with more drinks and said she'd got them from Branditt Ave. We kept having more drinks. I only had about 4 for the whole night and, at about 1, I thought we were gonna go to bed. R.C Tr: p 10,11	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
15. I had told them they could leave the heater on all night because they'd been sleeping on concrete. I wanted them to have a good sleep.	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
16. Out of the blue, Aaron came up to me and started hitting me in the head. I thought he was punching me so I put my arms up and said to him, "Stop mate, what are you doing?" 17. I saw blood coming out of my arms and realised he wasn't punching me, he was stabbing me. I didn't actually see the knife though. R.C Tr: p 13-16,40	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
18. I didn't realise how badly I was bleeding but went to the bathroom to wash myself. Aaron followed me in. R.C Tr: p 16,17	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
19. It’s like he was trying to dominate me, I couldn't do anything without his permission. R.C Tr: p 18	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
20. When I got into the bathroom I saw that I was bleeding everywhere. My face, both arms, it wouldn't stop bleeding. My right arm was spurting blood out. I was bleeding from my neck and grabbed a towel, holding it to my neck to try and stop the bleeding. R.C Tr: p 16,17	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
21. I went into the kitchen and saw my knife and my phone. I quickly grabbed them before Aaron could see. R.C Tr: p 6, 17	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
22. When he came in he was going, "Where's the knife? Where's the knife?" R.C Tr: p 5, 17	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
23. I was trying to work out how I could call the Police without him knowing. R.C Tr: p 22	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
24. I went back into the lounge room and Aaron grabbed one of my carver knives from the kitchen. He started swinging it around, but not really towards me but towards his girlfriend who was still sitting in the lounge. R.C Tr: p 6, 20,21	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
25. I sat back down running scenarios through my head of how I could get them out of my house. I was thinking to try and call the Police from my pocket but was worried that he'd hear them say "Police, Fire or Ambulance?" R.C Tr: p 22	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
26. He went and sat on top of Adrienne and just started pummelling her, punching her in the face. R.C Tr: p 3 27. She was saying, "Stop, what are you doing?" R.C Tr: p 3 And he was saying, "I've got an evil in me and when it gets out I can't help myself." R.C Tr: p 3	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
28. He said to her, "We've got to kill him 'cause he's gonna call the cops." R.C Tr: p 1 (same representation) R.C Tr: p ,3,16 (references to ringing the police) R.C Tr: p 37 (reference is to getting rid of him so he didn’t get in trouble)	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
29. She was saying "He's been good to us."	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
30. I was saying to him, "I'm not gonna call the cops, we're alright." R.C Tr: p 1,3,16	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
31. I wanted to go along with it and stop him getting worse.	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
32. I have an ornamental sword above the couch, its about 4 foot long and blunt. It has a red and brown leather handle. He grabbed it off the wall and started swinging it around. He was saying, ‘Who is you God? I am a God, I have the power to let you live and take your life’. I was still just sitting on the chair and he came over with the sword and tried to drive it through me. He drove it at my chest and hit me in the sternum. If it hadn't hit bone it would've gone right through me. R.C Tr: p 2, 23, 38	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
33. He was saying things like, "I've been inside for 10 years, I've already killed someone”. I was thinking at this point, it's either him or me tonight, one of us is gonna die at the end of this. R.C Tr: p 26,28,30	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
34. He'd turn on Adrienne every now and then and belt her.	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
35. He was yelling the whole time, he wasn't making sense, just up and down.	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
36. Earlier in the bathroom he'd even help me out and grabbed me the towel.	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
37. I kept thinking, "I'm not gonna die tonight, I'll find a way out of this." But as time went on, I was just getting drowsier. I thought, "I'm going to bleed out and die."	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
38. I don't know how much time had passed, but I remember seeing Mark EADE, a Police Officer who I knew from when we were kids. Him and another Officer were yelling, "Police!".	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
39. I don't know how they got in but they grabbed Aaron and took him outside.	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
40. They spoke with me and I gave Mark the knife that I'd put in my pocket.	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
41. Soon after, the ambulance came and took me to the Goulburn Valley Hospital.	Representation made to First Constable Samuel Harper on 20 May 2018 in a police statement signed at 4.17 am.	Clint McKINDLEY First Constable Samuel Harper
42. “I can’t get to the door”	19/05/2018 - 20/05/2018	Approximately midnight	30 Regent Street	Representation made to Senior Constable David ERDMANN on 20 May 2018 recorded in a police statement signed at 3:40am Representation made to Senior Constable Mark EADE on 20 May 2018 recorded in a police statement signed at 3:35am and dated 19 May 2018	Clint MCKINDLEY Senior Constable David ERDMANN Senior Constable Mark EADE
43. ‘I can’t get up’	19/05/2018 - 20/05/2018	Approximately midnight	30 Regent Street	Representation made to Senior Constable Mark EADE on 20 May 2018 recorded in a police statement signed at 3:35am and dated 19 May 2018	Clint MCKINDLEY Senior Constable Mark EADE
44. “He stabbed me”	19/05/2018 - 20/05/2018	Approximately midnight	30 Regent Street	Representation made to Senior Constable David ERDMANN on 20 May 2018 recorded in a police statement signed at 3:40am	Clint MCKINDLEY Senior Constable David ERDMANN
45. “he has stabbed me, he has stabbed me””	19/05/2018 - 20/05/2018	Approximately midnight	30 Regent Street	Representation made to Senior Constable Mark EADE on 20 May 2018 recorded in a police statement signed at 3:35am and dated 19 May 2018	Clint MCKINDLEY Senior Constable Mark EADE
46. “that’s it, that’s what he stabbed me with”	19/05/2018 - 20/05/2018	Approximately midnight	30 Regent Street	Representation made to Senior Constable Mark EADE on 20 May 2018 recorded in a police statement signed at 3:35am and dated 19 May 2018	Clint MCKINDLEY Senior Constable Mark EADE

As indicated in Table B, the substance of the evidence of the previous representation by the Representor is contained in the document(s) attached and/or the document(s) which has or have been served previously on Aaron COOLING.

TABLE B – Substance of Evidence of the Previous Representation

DESCRIPTION OF DOCUMENT	DATE OF DOCUMENT	LOCATION OF RELEVANT PASSAGE
1. Police statement of Clint McKINDLEY	20/5/2018	Depositions- pages 28-41
2. Recording and Transcript of interview between Clint McKindlay and Detective Leading Senior Constable Paul Van Emmerik	Recording made on 20/5/2018	Depositions- pages 141-187
3. Police statement of Senior Constable David ERDMANN	20/05/2018	Depositions – pages 70 - 75
4. Police statement of Senior Constable Mark EADE	19/05/2018	Depositions – pages 76 - 79

(NB If the previous representation was in writing, a copy of the document containing the representation must be attached to this notice)

As indicated in Table C & insofar as they are known to the Prosecution, particulars of the date, time & place at and the circumstances in which all other relevant representations were made by the Representor, & the name(s) of each person who saw, heard or otherwise perceived each additional representation being made are:

TABLE C – Particulars of Other Relevant Representations by the Representor

OTHER RELEVANT REPRESENTATION	DATE	TIME	PLACE	CIRCUMSTANCES	NAME OF WITNESS(ES)
1.Witness told hospital staff he was attacked by two known males	20 May 2108	12.45 am	Shepparton Goulburn Valley hospital	Witness speaking to hospital staff	Medical Records- p 255

As indicated in Table D, the substance of the evidence of all other relevant representations made by the Representor (if any) are contained in the document(s) attached and/or the document(s) which has or have been served previously upon Aaron COOLING.

TABLE D – Substance of Evidence of all Other Relevant Representations

OTHER RELEVANT REPRESENTATION	DESCRIPTION OF DOCUMENT	DATE OF DOCUMENT	LOCATION OF RELEVANT PASSAGE
1.

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6 September 2019