Director of Public Prosecutions v McDermott (Ruling No 7)
[2016] VSC 819
•5 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0195
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRAIG McDERMOTT |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 April 2016 |
DATE OF RULING: | 5 April 2016 |
CASE MAY BE CITED AS: | DPP v McDermott (Ruling No 7) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 819 |
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CRIMINAL LAW — Evidence — Admissibility — Hearsay — Witness not available to give evidence — Whether representations made in circumstances that made it highly probable that the representations are reliable — Whether probative value of evidence outweighed by danger of unfair prejudice — Evidence Act 2008 (Vic) ss 65(1), 65(2)(c), 137
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kissane QC with Ms E Ruddle | Office of Public Prosecutions |
| For the Accused | Mr J Desmond | Doogue O’Brien George |
HER HONOUR:
This ruling concerns the admissibility of hearsay evidence that S, the daughter of the accused and the deceased, allegedly overheard the accused making a threat to kill the deceased with a knife (the ‘knife threat’).
S was eight years old at the time she allegedly overheard the accused making the knife threat. This occurred when she was last in the custody of the accused in March 2014.
The relevance of the evidence is that the making of the threat by the accused is demonstrative of the accused’s state of mind, his animus and intention regarding the deceased in the weeks leading up to the killing.
The probative value of the evidence that the accused threatened to kill the deceased with a knife in the presence of his children in the period leading up to the killing was discussed and affirmed by J Forrest J in R v McDermott (Ruling No 1)[1] when his Honour considered S’s sister’s evidence about the threat. I agree with his Honour’s reasoning about the probative value of the evidence of the threat.
[1][2015] VSC 615 [129]-[130].
S made representations of the knife threat to several witnesses, as set out in the table below in chronological order:[2]
[2]The Crown’s hearsay notice included a table with a number assigned to each hearsay representation that the Crown proposed to adduce at the trial. For ease of reference, I have adopted the numbering in the table when referring to specific representations.
No. Made on Representation Joshua Warzywoda, maternal uncle 185 24 March 2014 [S] told the deceased (in [Joshua Warzywoda’s] presence) that the accused had pulled out a pocket knife and said he was going to kill the deceased. Manuela Galvao, Senior Family Consultant at the Federal Circuit Court 82 15 April 2014 [S] reported that whilst in the care of her father in March 2014 ‘Dad says he loves Mum but he wants to kill her.’ 83 15 April 2014 [S] reported that ‘Dad said he was going to kill Mum with a pocket knife. The pocket knife was in the car.’ 84 15 April 2014 [S] reported that she said to her father, ‘You can’t kill our Mum - she’s our Mum.’ Senior Constable Jamie Coles, interviewed S on a VARE at Bendigo Police Station N/A 17 April 2014 Q 24 OK. Now, let’s have a look here.
A Oh, and he had a pocketknife in the car and he said that he wanted to kill mum – mum. But then he said that he wanted to kill mum with the pocketknife and he’s got it in the car and – and then last night, I said, ‘That’s probably how he killed mum.’
N/A 17 April 2014 Q 122 OK, all right. So you saw the pocketknife and your dad told you it’s a pocketknife. And then you said something that dad loves her but he was gunna kill her. Is that right? So tell me about the words and what happened then.
A He said he loved mum, but then he said he wanted to kill mum with the pocketknife. And he said, ‘It’s right here,’ and I was like, ‘Dad, don’t do that – don’t show’ – and he was like, ‘Shut up. You don’t need to tell me what to do.’ And then Indianna said that she wanted to jump out and kill herself.
The Crown seeks to have each of S’s representations about the knife threat admitted as an exception to the hearsay rule under s 65(2)(c) of the Evidence Act 2008 (Vic) (‘the Act’).
Sections 65(1) and 65(2)(c) of the Act state:
(1)This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
…
(c)was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; …
For reasons which I will explain, I am not convinced that Representation 84 is a relevant representation.
The representations made to Senior Constable Coles on the VARE were not included in the Crown’s hearsay notice because it had been intended that S would be called as a witness in the first trial of the accused,[3] whereupon she would attest to the truthfulness of the contents of the VARE and be available for cross-examination.
[3]The first trial commenced on 29 October 2015.
Had she been capable of giving evidence and confirming her answers on the VARE in this trial, this aspect of her evidence would have been direct evidence of a threat made by the accused in her presence.
In the circumstances described below, I accept that S is not available to give evidence in court.
The notice requirement is waived pursuant to s 67(5) of the Act, bearing in mind the period of time which has elapsed since the first trial was aborted in November 2015 and this ruling on 5 April 2016.
At a Basha inquiry before J Forrest J, S was called to give evidence but was unable to due to her distress. His Honour had concerns that S would not be able to give evidence at the trial.[4]
[4]This is discussed in R v McDermott (Ruling No 1) [2015] VSC 615 [134]-[138] (J Forrest J).
S had not been required for cross-examination at the committal hearing and, therefore, has never been cross-examined about her representations that the accused made the knife threat.
Ultimately, the first trial before J Forrest J was aborted before S was due to give evidence and a new trial date set.[5] In the interim, his Honour ordered a psychiatric report as to the capacity of the accused’s children to give evidence and be cross-examined.
[5]See R v McDermott (Ruling No 5) VSC 652 (J Forrest J).
A report was received from Dr Adam Deacon on 6 March 2016.[6] He opined that S, at the time of his assessment, was a ten-year-old girl who was potentially emotionally fragile and prone to feeling overwhelmed and that it could not be considered appropriate to request that she attend court on the second occasion. He noted that she presented as relatively immature for her age and unlikely to possess the requisite coping skills to protect her from what was likely to be an inevitably traumatic experience.
[6]Dr Adam Deacon, ‘Psychiatric Report Re: DPP v McDermott’ (6 March 2016).
S had told Dr Deacon that she was scared to return to court. She also said she did not want to state her father’s last name and she noted that she and her sisters wished to have their names changed.
It is notable that Dr Deacon recorded in his report that S told him that ‘her father had a pocket knife and said he would kill her mother’.[7]
[7]Ibid 2.
The Crown had attempted to call S without success and, after receiving Dr Deacon’s report, the Crown conceded that it had exhausted that option. As a result, the Crown submits that she has now become an unavailable witness for the purposes of any representations of the knife threat made on the VARE.
Mr Desmond for the accused did not seek to argue against the categorisation of S as an unavailable witness at the present time.
As stated above, I accept that S is not available to give evidence as defined in pt 2 cl 4(1)(g) of the Dictionary and pursuant to s 65(1) of the Act.
As a result, the Crown argues that it should now be entitled to adduce S’s representations of the knife threat as an exception to the hearsay rule under s 65(2)(c) of the Act.[8]
Are S‘s representations of the knife threat on the VARE admissible under s 65(2)(c) of the Act? If so, should they nevertheless be excluded in the exercise of discretion under s 137 of the Act?
[8]Before Dr Deacon’s report, the Crown had sought to lead Representations 82, 83, 84 and 185 under s 66(2)(b) of the Act.
I will deal, firstly, with S’s representations about the knife threat on the VARE, particularly at questions and answers (‘Q&A’) 24 and 122.[9] I will refer to the knife threat representations on the VARE in the singular, although they encompass a number of interrelated representations made by S about the knife threat.
[9]There are a number of other passages in the VARE where S referred to the knife threat.
Section 65(2)(c) of the Act provides that 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 was made in circumstances that make it highly probable that the representation is reliable.
Section 65(2)(c) requires that I identify and assess the circumstances of the making of S’s representation of the knife threat to establish whether there is a high probability that the representation is reliable.
In Azizi v The Queen,[10] the Victorian Court of Appeal cited with approval the following passage of the New South Wales Court of Criminal Appeal in R v Ambrosoli:[11]
… I would not exclude reference to events outside the time and place of the making of the previous representation itself from the range of ‘circumstances’ capable of reflecting on the unlikelihood of it being a fabrication when made or the high probability of it being reliable when made.[12]
[10](2012) 224 A Crim R 325 (‘Azizi’).
[11](2002) 55 NSWLR 603 (‘Ambrosoli’).
[12]Ibid 616 (Mason P, Hulme and Simpson JJ agreeing), cited in Azizi v The Queen (2012) 224 A Crim R 325 [50].
Prior or subsequent circumstances or events, such as other representations made by S, are relevant considerations insofar as they bear on the circumstances that existed at the time the knife threat representation was made.
The Crown argues that the knife threat representation by S on the VARE meets the test of admissibility under s 65(2)(c) of the Act because S is unavailable to give evidence about the representation, and it was made on the VARE in circumstances that make it highly probable that the representation is reliable.
Mr Kissane QC, counsel for the Crown, submitted that S recounted events on the VARE that occurred prior to 24 March 2014, being the date that the deceased recovered custody of S and her siblings from the accused by order of the court. He argued that the court could have regard to S’s presentation on the VARE as relevant to the circumstances of the reliability of the representation.
I take this argument to include by extrapolation the fact that the VARE was recorded in serious circumstances shortly after the deceased had been killed, and that the interviewer conducting the VARE impressed upon S the need to tell the truth at the start of the interview. S demonstrated that she knew the difference between truth and lies. There was also the convincing manner of S’s demeanour and manner of answering questions on the VARE about the knife threat.
Further, Mr Kissane QC submitted that the court could have regard to fact that the substance of the knife threat was allegedly recounted by S to her uncle Joshua and her mother shortly after being recovered from her father’s custody on 24 March 2014, and that it was also related by S to Ms Galvao when she interviewed S alone for the purposes of the independent investigation by the family consultant on 15 April 2014. Therefore, it was argued that there was consistency in the substance of the knife threat as described by S on three separate occasions.
Mr Kissane QC argued that if S’s representation of the knife threat on the VARE is admissible under s 65(2)(c), then any argument under s 137 for exclusion of the evidence on the basis of unreliability would founder. The argument under s 137 would then be focussed on unfair prejudice and Mr Kissane QC submitted that, despite the accused not having the opportunity to cross-examine S, the probative value of the evidence is not outweighed by the unfair prejudice caused to the accused.
Mr Desmond submitted on behalf of the accused that S’s representation about the knife threat on the VARE were not made in circumstances that make it highly probable that the representation is reliable because of the following factors:
(a) S has never been and never will be cross-examined about the representation.
(b) S spoke about the accused having made the knife threat on the fourth day of being in her father’s custody and of being in her father’s car, but was not precise about the date. Therefore, there is uncertainty about the date that S was referring to in her representation.
(c) There is potential inconsistency between S and her sister as to when the knife threat was uttered within the wider timeframe of the children being in the custody of the accused prior to the recovery order.
Mr Desmond raised the risk that this inconsistency might cause a jury to think that there were two separate occasions of the knife threat being uttered by the accused.
Mr Desmond also raised a concern about inconsistency among the witnesses who deposed to being told of the knife threat from S and her sister as to when it was first relayed to them by the children.[13]
[13]He referred to the evidence of Joshua Warzywoda, Michelle Costa, S’s eldest sister, Liza Dearing and the police solicitor Olivia Cameron, and two Federal Circuit Court documents lodged by the deceased.
He also argued that this was a case where the issue of collusion was enlivened. Whilst not disputing that the accused had an HSV pocket knife in his car, he noted an inconsistency between S’s description in the VARE of touching the HSV pocket knife when she was in the car at the time the accused made the knife threat,[14] and her sister’s evidence at the Basha inquiry that the children did not touch the knife.
[14]Q&A 141.
He argued that relying on Joshua Warzywoda’s evidence as support for the reliability of the knife threat was flawed because Joshua and the deceased had a motive to collude and embellish the narrative about the children’s complaints for the purposes of the gaining an advantage in the Federal Circuit Court proceedings. He argued that there was the risk that Joshua had influenced the children to say what was needed to assist their mother’s case.
He argued that, whilst there is no doubt that S made the representation about the knife threat to Ms Galvao, not much weight could be put on this as support for the reliability of the representation made on the VARE because Ms Galvao’s task was to gather information quickly for an oral report to the court that afternoon and she conceded under questioning at committal that she did not test or challenge the children about whether they were mistaken about the threat.
Also, Ms Galvao received the representation on 15 April 2014, some three weeks after the date the children were returned to their mother under the recovery order, so the information was less fresh at this stage.
Mr Desmond submitted that, in the event that I ruled that the knife threat representation on the VARE was admissible as a hearsay exception under s 65(2)(c), I should nevertheless exclude it under s 137 in accordance with the principles discussed in Dupas v The Queen[15] or pursuant to the court’s residual discretion to exclude evidence to ensure a fair trial.[16]
[15]40 VR 182.
[16]Haddara v The Queen (2014) 43 VR 53.
The principal arguments Mr Desmond put forward to persuade me that the danger of unfair prejudice outweighed the probative value of the evidence were these:
(a) S’s evidence on the VARE has never been and will never be properly tested under cross-examination.
(b) The jury will be persuaded to view S’s evidence as buttressing the evidence of Joshua Warzywoda and S’s two sisters and, therefore, the evidence will assume unwarranted significance.
(c) The jury might think the threat was made more than once because of the lack of precision about the date the knife threat was made and might reason that the accused had a tendency to make threats of that kind.
Mr Desmond argued that the probative value of the disputed evidence was low when the reliability issues were taken into account, including the risk of collusion. He attacked the reliability of S’s representation on the VARE for the same reasons as referred to for the consideration of s 65(2)(c).
In my view, S’s representations on the VARE about the knife threat uttered by the accused in the car during the period when he last had custody of the children were made in circumstances that make it highly probable that the representation is reliable.
Firstly, S being called into the police station to speak about the lead up to the killing of her mother by her father was a grave circumstance and my viewing of the VARE persuades me that the seriousness of the circumstance was not lost on S at the time of the interview.
Secondly, the context in which she repeated the knife threat representation in the VARE on 17 April 2014 flowed in time relatively soon after having made a similar representation to Ms Galvao on 15 April 2014. The defence do not dispute S’s representation to Ms Galvao, but do dispute the truth or reliability of what was said in the disclosure. But for the purposes of my consideration of the likely reliability of what was said on the VARE, I am entitled to consider the overall consistency of S’s recounting of the substance of the threat as between Ms Galvao and the VARE.
I am also entitled to consider the relatively serious circumstance in which she was interviewed by Ms Galvao at the Federal Circuit Court. There is overall consistency in the substance of the threat as described on the three occasions.
Joshua Warzywoda recounts that on 24 March 2014 when the children were returned to their mother, S told the adults present of the threat by the accused to kill the deceased with the pocket knife that he had in the car. In my view, there is no reason to surmise that S invented or was mistaken about such a graphic threat uttered so tellingly by her father in the last period in which she was in his custody prior to returning to her mother’s care.
It is apparent from Q&A 20 of the VARE that by the time of the VARE she had learned that her father had killed her mother with a knife and connected this fact in her mind with her memory of her father’s threat to do just that.
It is alleged that the accused made the knife threat in the presence of S and one of her sisters whilst in the car. Her sister will also give evidence as to the substance of this same threat made when the children were in their father’s car during the time the children were kept by the accused prior to the recovery order. Her sister’s evidence is not, however, necessary for my determination that the circumstances of the VARE representation are such that it is highly probable that the representation is reliable.
Mr Desmond argued that S may have been influenced by the deceased and others colluding about the threat to gain an advantage in the Federal Circuit Court proceedings. He points to some allegedly inconsistent conduct by the deceased between 24 March and 26 March 2014.
One of the difficulties with Mr Desmond’s submissions about the application of s 65(2)(c) is that he tended not to focus on the circumstances of the making of the knife threat representation in the VARE and the likely reliability of the representation as a result of those circumstances.
As stated above, s 65(2)(c) requires the court to assess whether the circumstances make it highly probable that the representation is reliable, not to assess the representor’s reliability.
There is some doubt in the jurisprudence on the proper interpretation of s 65(2)(c) as to the extent to which representations made by others on earlier occasions that are inconsistent with the maker’s representations are capable of being considered for the purposes of assessing reliability of the maker’s representation. However, Azizi supports the potential to have regard to other representations made by the maker.[17]
[17]Azizi v The Queen (2012) 224 A Crim R 325 [50].
Nevertheless, I accept that the onus of proving the high probability of the reliability of a representation under s 65(2)(c) in this case rests on the Crown and that it is described in Conway v The Queen[18] as an onerous one. There is no evidence to suggest that the reliability of S’s representations on the VARE were tainted by collusion or undue influence or by others contaminating her memory of what she experienced. It is likely that S connected her experience of her father’s conduct prior to the killing (which she had already disclosed to her uncle Joshua and to Ms Galvao) to learning that her father had killed her mother on the day prior to the VARE and that this heightened her awareness of the significance of the knife threat that she had earlier witnessed.
[18]Conway v The Queen (2000) 98 FCR 204 [146].
Despite Mr Desmond’s arguments about there being some inconsistency in S’s evidence about the date that the knife threat was made and some of the surrounding details, the substance of the threat relayed by S is fundamentally consistent. I note that S made the representation about the knife threat in a relatively free-flowing narrative with generally non-leading questioning.
There is nothing about her presentation on the VARE that leads to the conclusion that she was mistaken, confused or simply parroting something that she did not in fact experience.
I do not consider that the fact that she has never been and will not be cross-examined at trial about her representation leads to the view that S’s representation of the knife threat on the VARE was not made in circumstances that make it highly probable that the representation is reliable.
S’s evidence about the knife threat made on the VARE is admissible under s 65(2)(c).
Turning to the question of exclusion of the evidence under s 137, I am not persuaded of the basis for excluding S’s evidence of the knife threat on the VARE.
Section 137 of the Act states:
Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
I have taken into account that S was only eight years old when she made the VARE. I have considered Mr Desmond’s argument that children can be subject to subtle pressures to conform with the expectations of others and, in effect, fall into line. I have also considered the possibility that S, as the younger sister, has copied her sister’s behaviour in relating the knife threat. I have also considered Mr Desmond’s argument that the defence have been deprived of the opportunity to challenge one of the witnesses to a contested threat in circumstances where the defence will be suggesting through cross-examination that the deceased and her brother Joshua colluded to embellish the evidence about the knife threat for the purposes of the family law proceedings and will challenge and have challenged all available witnesses to this effect.
I accept that forensic disadvantage to an accused resulting from a lack of opportunity to cross-examine a witness can result in a danger of unfair prejudice. The test to be applied is whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. Although it is a forensic disadvantage to the defence to be unable to cross-examine S, it has been agreed by the Crown that if the evidence is admitted, no Browne v Dunn[19] point will be taken regarding the case that Mr Desmond wants to run about contamination or unconscious influence.
[19](1893) 6 R 67.
I have considered the danger of unfair prejudice to the accused by reason of the Crown obtaining a buttressing effect from the inclusion of S’s untested evidence. As to the suggestion that there will be an unfair buttressing of her sister’s evidence or of the evidence of the other witnesses who heard from S about the knife threat, the counter-argument is that if the evidence is not led, the Crown will be deprived of the probative value of S’s evidence.
In my view, there is not likely to be unwarranted significance attached to S’s evidence by the jury. In any event, any such risks attached to S’s evidence can be dealt with by judicial direction.
As to the argument that the jury may speculate about multiple incidents or threats or a tendency to make such threats, this can be dealt with by formal directions to avoid such speculation.
Ultimately, it is my view that the probative value of S’s evidence is high for the reasons expressed by J Forrest J in his Honour’s ruling admitting the related representations by her sister reporting the knife threat after the recovery order.[20]
[20]R v McDermott (Ruling No 1) [2016] VSC 615.
I consider that, although there is some danger of unfair prejudice arising from the admission of S’s evidence, it does not outweigh the probative value of that evidence. Further, the danger of unfair prejudice would be significantly reduced by giving the jury an appropriate direction to exercise caution in the use of S’s evidence.
It is my view that it is highly probable that S’s representations on the VARE are reliable and, therefore, I am not minded to view the evidence as requiring exclusion on the basis of unfair prejudice or based on unreliability or general unfairness.[21]
Are the representations made by S to Joshua Warzywoda and Ms Galvao admissible under s 65(2)(c)? If so, should they, nevertheless, be excluded under s 137?
[21]See Haddara v The Queen (2014) 43 VR 53.
Turning to S’s representation about the knife threat to Joshua (Representation 185), I am persuaded that it is also admissible under s 65(2)(c) for substantially similar reasons that apply to the VARE representation.
Firstly, the circumstance in which S made the representation to her uncle Joshua and her mother soon after being returned was a logical and appropriate opportunity for the report of the threat to be made by S. It was also closer in time to the period when the threat was allegedly made.
Secondly, S repeated the representation in serious and important circumstances both before and after her mother was killed, firstly to Ms Galvao and then to Senior Constable Coles on the VARE. In its repetition the representation was substantially similar on each occasion.
Thirdly, the timing of the representation to her uncle Joshua so soon after S and her siblings were returned provided scant opportunity for contamination or unconscious influence by Joshua or the deceased prior to the threat being recounted by S to Joshua and the deceased. Although it is possible that S may have been unconsciously influenced by her sister’s narration of the threat at the time, this possibility is fairly remote. S’s narration of the threat to her uncle Joshua and later to Ms Galvao and to Senior Constable Coles on the VARE included aspects of her own individual recollection of what was said and what she did and said in response to her father’s conduct as well as her own emotional reaction at the time.
Therefore, I consider that the circumstances in which she recounted the threat to Joshua make it highly probable to be reliable. Representation 185 is admissible under s 65(2)(c).
I also do not consider that it should be excluded under s 137 or pursuant to the court’s residual fairness discretion for reasons similar to my consideration of the VARE representation. In my view, the probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused, despite the fact that S will not be cross-examined about the representation to Joshua and despite Mr Desmond’s arguments about possible contamination or unconscious influence. There is no general unfairness to the accused in the admission of the evidence that would warrant its exclusion.
Turning to the representations made to Ms Galvao, I am not convinced that Representation 84 is a relevant representation in the sense that S was merely explaining her response to her father’s threat, rather than recounting the threat itself.
Regarding Representations 82 and 83, it is my view that they are also admissible under s 65(2)(c). In the circumstances that they were made, it is highly probable that the representations are reliable. Although they were made some weeks after S alleged she had witnessed the knife threat, nevertheless the circumstances of the disclosure to Ms Galvao were serious and important in the context of family law proceedings which were ongoing between her parents, which she must have been aware related to a relatively recent and dramatic breakdown of her parents’ relationship.
Although the interview with Ms Galvao was conducted under pressure of time and did not involve Ms Galvao interrogating S about whether she was mistaken or if there were other explanations for what she alleged her father said or did, nevertheless Ms Galvao interviewed S alone and there was no suggestion that Ms Galvao was not performing her role professionally. S described to Ms Galvao her emotional responses to the threat uttered by her father. Ms Galvao described S as being a serious child and described her as giving considered replies to questions.
Although Mr Desmond argued that you would not hang your hat on Ms Galvao given the nature of her task and the period that had transpired since 24 March 2014, I do not accept that the reliability of the representations to Ms Galvao are adversely affected by those arguments.
I note that in arguing for the exclusion of representations made to Ms Galvao pursuant to s 137, Mr Desmond embraced similar arguments about collusion, unconscious influence, unfair buttressing of the Crown case, the risk of a jury misusing the evidence as tendency evidence and a general attack on the reliability of S as the source of the representation in the circumstances of the family break up.
In weighing the danger of unfair prejudice and the probative value of the evidence, it is my view that the probative value of Representations 82 and 83 is not outweighed by the danger of unfair prejudice to the accused. I also do not consider that there is any general unfairness to the accused in the admission of the evidence that would warrant its exclusion. Any prejudice of the kind referred to by Mr Desmond can be dealt with by appropriate judicial warnings and anti-speculation directions.
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