Director of Public Prosecutions v O'Connell

[2023] ACTSC 131

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v O’Connell

Citation:

[2023] ACTSC 131

Hearing Date:

23 May 2023

DecisionDate:

30 May 2023

Before:

Baker J

Decision:

See [59].

Catchwords:

CRIMINAL LAW – CRIMINAL PROCEDURE – Evidentiary matters relating to witnesses – application to redact aspects of Evidence in Chief Interviews – objections to admissibility of parts of EICI – state of mind evidence – whether jury would be prejudiced hearing allegations of violence occurring close in time to alleged offending – whether prejudicial effect could be reduced by anti-tendency direction – probative value of evidence objected to – objection to lay persons estimate of speed – when objections to EICI should be made.

Legislation Cited:

Evidence Act 2011 (ACT) ss 78, 97, 101, 137

Cases Cited:

Haines v R [2018] NSWCCA 269

O’Leary v The King [1946] HCA 44; 73 CLR 566

R v Adam [1999] NSWCCA 189; 106 A Crim R 510

R v Fleming; R v Maher [2017] SASC 16

R v Heidt (1976) 14 SASR 574

R v Hocking [1988] 1 QdR 582

R v Mostyn [2004] NSWCCA 97

R v Player [2000] NSWCCA 123; 217 ALR 578

R v Serratore [2001] NSWCCA 123

Parties:

ACT Director of Public Prosecutions ( DPP)

Michael O’Connell ( Accused)

Representation:

Counsel

M Smith ( DPP)

S McLaughlin ( Accused)

Solicitors

ACT DPP

ACT Legal Aid ( Accused)

File Number:

SCC 251 of 2022

BAKER J:      

Introduction

1․The accused, Michael O’Connell, is charged on indictment with a single charge that he murdered Danielle Patricia Jordan (the deceased).

2․The matter is listed for trial before myself commencing 30 May 2023.

3․In brief, the Crown case is that the deceased died when she fell from the bonnet of a dual cab utility, which the accused was driving, at approximately 4:00am on 15 April 2022. The accused and the deceased had an argument about two hours earlier (“the 2:00am argument”). The deceased’s friend, [the young person], was an eye-witness, both to this argument and to the incident where the deceased fell from the accused’s bonnet.

4․[The young person] was 13 years old at the time. She participated in an Evidence in Chief Interview (“EICI”) on 15 April 2022.  She gave evidence in a pre-recorded hearing before Berman AJ on 5 May 2023.

5․By application dated 23 May 2023, the accused seeks various redactions to be made to the EICI on the basis of objections to the admissibility of the evidence. A number of those edits have been agreed. However, the following redactions are opposed by the Director of Public Prosecutions (“the Prosecution”):

(i)Evidence of a physical altercation that occurred during the 2:00am argument, in which [the young person] describes the accused pushing the deceased’s head into a bed, causing a cut to the deceased’s eye (Q78 – Q88);

(ii)[The young person]’s answer “oh 60, 70 maybe. I don’t know” in answer to the question “and how fast do you think the car might have been going?” (Q162 – Q164); and

(iii)[The young person]’s answer that she did not see when the deceased fell from the bonnet (QA165).

6․As outlined further below, it is highly unsatisfactory that objections have been made to the EICI after the pre-recorded hearing is complete. Nonetheless, it is necessary for me to consider these objections to ensure the fairness of the trial.

7․For the reasons outlined below, I accept the accused’s submissions in respect of objections (i) and (ii) above. Those answers are to be edited from the EICI. Objection (iii) is refused. That answer will not be edited from the EICI.

The Crown case

8․The Crown case against the accused is as follows.

9․In April 2022, the accused had been in an “on/off” relationship with the deceased. On the evening of 14 April 2022, the accused visited the deceased at her home. [The young person], who was a friend of the deceased, was also visiting the deceased at her home that evening.

10․At around 2:00am, the accused and the deceased had an argument. The accused was attempting to leave, and the deceased was trying to stop the accused from leaving. The accused tried to leave through a window, but the deceased grabbed his shirt. The accused took off his shirt and said “bye, you can have it”. The accused continued to climb out of the window, but then stopped and started pushing the deceased backward, eventually pushing her head into the bed. The deceased sustained a cut to her eyebrow. The deceased then grabbed the accused’s shirt. The accused walked down the hallway, with the deceased holding the shirt and being dragged behind him. When [the young person] yelled at the deceased to let go, the deceased let go of the shirt and the accused left.

11․The accused returned to the residence at about 4:00am. There was a further argument between the accused and the deceased. The deceased said “Michael, if you’re just going to start your shit just leave”. The accused said “Oh if you want me to leave I’ll just go”. The deceased then said “no, no, no, no, Michael calm down. I just want to talk to you”. The accused grabbed his shirt and walked toward the front of the house to leave.

12․The accused then walked out of the house and got into his car. The deceased followed the accused and climbed on the bonnet of the car. The deceased asked the accused to come back inside. There was a further argument when the accused yelled at the deceased to get off the car. The accused got out of the car and started walking down the street. [The young person] asked the accused if he was just going to leave his car there. He responded “yeah”.

13․The deceased then climbed through the window of the accused’s car saying that she was trying to find her “vape”. The accused returned and dragged the deceased out of his car.

14․The accused then got back into the car. The deceased climbed back onto the bonnet and initially sat cross-legged on the bonnet. The accused started to drive forward slowly. [The young person] stood in front of the car, yelling at the deceased to get off the bonnet. The accused drove forward slowly, causing [the young person]to walk backwards. This continued until the accused had driven to the top of the street. The accused then reversed back down the cul-de-sac with the deceased still on the bonnet. He came to a stop and then accelerated rapidly towards [the young person]. [The young person] jumped out of the way.

15․The accused continued driving along the street and then turned left onto Alfred Hill Drive. The accused accelerated rapidly. [The young person] saw the car travel past with the deceased still on the bonnet. [The young person] estimated that the car was travelling around 60-70 km/hr but said that she was not sure.

16․The accused continue to drive for approximately 210 meters down Alfred Hill Drive, until the deceased fell off the bonnet. When she fell off, the deceased struck her head on the road. The head injuries rendered the deceased unconscious.

17․The accused carried the deceased into the Emergency Department of Calvary hospital at around 4:50am. At 5:49am, the deceased was transferred to Canberra Hospital for further treatment.

18․The accused provided different versions of the events to several people following the incident. The accused told a number of hospital staff, various friends and the deceased’s mother that the deceased had fallen from stairs, although he gave differing accounts as to how she had fallen. When he returned home, the accused also told [the young person] to tell everyone that the deceased had fallen down the stairs.

19․The accused later explained that he gave this version of events to hospital staff because he “didn’t want to make the deceased out to be a psycho”. He also said that he gave an incorrect account to the deceased’s mother about what had occurred because he did not want to make the deceased “look silly” or to jeopardise her relationship with her mother.

20․Despite the efforts of medical personnel at the two hospitals, the deceased was pronounced life extinct at 9:25pm on 17 April 2022.

Determination

The first objection: the ‘state of mind’ evidence

The objection

21․The first portion of the evidence objected to is as follows:

Q78. Did you see if Danielle had any injuries as a result of being dragged down the hallway?

A Yes. Um, after he – um, on the bed, after, like, they were trying to – when he was trying to get the shirt off her on the bed, when he pushed her head into the bed, I don’t know how, but he split there open, I’m pretty sure, because when she walked out the front – like, when we all walked out the front when he left, she, like, turned around and she’s, like, ‘Look, you, like, cut me.’ And she was, like, bleeding from there. And I was, like, ‘Fuck.’

Q79. Okay. So just backtracking a little bit. You said when he’s got the shirt off her, or trying to get the shirt off her, he’s pushed her head into the bed?

A Yeah. He, like – he – he always does it. He, like, puts his hand on her fucking, like, head, and then twists his hand, so, like, twists her head into the floor or the bed or wherever her head is.

Q80. Okay. And did he do that this particular time that you’re talking about, in that action that you’ve just described for us?

A Yeah.

Q81. Obviously we’ve got it on video, so.

A Yep.

Q82. Okay. And what was Danielle doing at that moment when he’s twisting her hands into her head and pushing?

A Still grabbing the shirt.

Q83. Yep. Did she say anything at that time?

A Usually during the fights she’s, like, really quiet, because she’s, like, really angry. But then, like, when he’s, like, you know, leaving, she’ll, like, scream at him or whatever. But, like, when they’re actually having, like, conflict, she’s usually just quiet but very angry.

Q84. Yeah. Yeah. Okay. Okay. And obviously after that you said that there was the dragging down the – down with the shirt?

A Yeah.

Q85. And then you said she has told you and showed you that there was a cut?

A Yeah.

Q86. Whereabouts was that cut to her?

A Um, it was right there, like, on the eyebrow, I’m pretty sure.

Q87. Yeah. And had you seen that cut on Danielle before that incident?

A No.

Q88. No. Okay. So at that moment she’s shown you the cut – she showed you the cut. What happened directly after that?

A Um, I just went back to bed and she just went to her room

22․It is important to note that the evidence sought to be excluded by the accused does not include the evidence that there was an argument between the deceased and the accused at 2:00am, or that the accused dragged the deceased down the hallway whilst she was holding onto the shirt. It is agreed by both parties that this evidence is necessary for the jury to understand the context in which the events occurred.

23․However, the accused submits that [the young person]’s evidence concerning the accused pushing the deceased’s head into the bed and causing a cut to her eyebrow is of a different character. He submits that the prejudice lies in the jury hearing an allegation of violence committed by accused against the deceased hours before the alleged murder. The accused submits this evidence is not probative as to the facts in issue at trial or the accused’s state of mind two hours later when he returned at 4:00am, when the alleged murder is said to have occurred. For this reason, the accused submits that this evidence should be excluded pursuant to s 137 of the Evidence Act 2011 (ACT).

24․The prosecution submits that this evidence is admissible as “transactional” or “state of mind” evidence. The prosecution submits that it would be open to the jury to infer that the accused had a “continuing state of mind” from the earlier altercation, despite the “short temporal gap”. In oral submissions, the prosecutor particularised the state of mind sought to be inferred from the earlier assault as being “animosity, rising to a level of violence”.  

Case law concerning “transaction” or “state of mind” evidence

25․A seminal decision on the issue of transaction or state of mind evidence is the decision of the High Court in O’Leary v The King [1946] HCA 44; 73 CLR 566.

26․The victim in O’Leary had been killed during the course of what was referred to as a “drunken orgy” at a timber mill camp which had also been attended by the appellant as well as a number of other employees from the mill. The Crown case was that the appellant had struck the victim eight or nine times over the head with a bottle, before pouring kerosene on the victim and setting the victim alight. At trial, evidence was admitted of the appellant having engaged in earlier violence during the course of the orgy, including assaulting and threatening other employees as well as aiming a blow at the victim.

27․A majority of the High Court (Latham CJ, Rich, Dixon, Williams and Starke JJ, McTiernan J dissenting) upheld the trial judge’s decision to admit the evidence of the earlier incidents. In so finding, each of the majority justices other than Starke J emphasised the connection between the earlier acts of violence and the offending.

28․For example, Latham CJ described the earlier acts of violence as being “part of the one course of behaviour on the day and night of the crime”, and held (at 575) that the evidence was of:

… facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.

29․Similarly, Rich J found (at 576) that the earlier acts of violence were admissible because they formed “part of the circumstances of the crime”, including the defendant’s “drunken condition, how he reached that condition, how long it continued and how, while in that condition, he was behaving”. His Honour concluded that “all the circumstances… form[ed] inseparable features of a transaction consisting of connected events”. Justice Dixon likewise held (at 577) that the acts were of “a connected series of events… which should be considered as one transaction”. See similarly at 582, per Williams J. 

30․In contrast, Starke J did not agree with the other justices that the evidence was part of a continuing course of conduct, noting that  the earlier incidents were committed at various intervals during the night and day (at 577). However, his Honour was of the view that the evidence was admissible as similar fact evidence (at 576). 

31․It is well-accepted that the reasoning of the majority in O’Leary survived the enactment of the Evidence Act and that where there is a single transaction, or “course of conduct”, tendency reasoning will not be engaged for the evidence to have probative value: R v Adam [1999] NSWCCA 189; 106 A Crim R 510 at [22] - [30].

32․Various decisions from courts around Australia have considered the decision in O’Leary. These decisions include the following:

(i)In R v Heidt (1976) 14 SASR 574, the defendant assaulted a security officer who had attempted to remove him. His defence was self-defence. Police arrived a few minutes later. After approximately ten minutes of negotiation, the defendant resisted the police officers when they attempted to remove him. The Full Court of the Supreme Court of South Australia held that the trial judge had wrongly admitted the evidence of the defendant’s resistance to police. In so holding, the Court distinguished the offending from the “continuous and confused orgy” in O’Leary, emphasising that in the present case, there was a “clear separation in time” and that these were “separate episodes with different actors” (at 580).

(ii)In R v Hocking [1988] 1 QdR 582, the appellant was convicted of attempting to shoot a police officer, with intent to resist a lawful arrest. The police officer was driving a police vehicle at the time, and an issue in the trial was whether the appellant intended to shoot a police officer, or simply to disable the police vehicle. The prosecution led evidence of an altercation involving the appellant at a hotel earlier in the evening which had resulted in the appellant being ejected from the hotel. Further, that the appellant and another had stolen shotguns and ammunition and were returning to the hotel when they were intercepted by police.

The Queensland Court of Appeal allowed the appeal against conviction, holding that the evidence of the earlier events was inadmissible. In distinguishing O’Leary, Williams J (with whom Kelly SPJ and Ryan J agreed), referred to the decision in Heidt, and likewise found that the two events were “separate episodes with different actors”. Continuing the analogy, his Honour considers that the “two episodes were like separate acts in a play separated by a significant interval” (at 592).

(iii)In R v Adam, the appellant had been found guilty of maliciously inflicting grievous bodily harm to an off-duty officer. The Crown alleged that the appellant was one of a group who were involved in the attack.  In support of its case, the Crown adduced evidence of the appellant arguing with, and staring at, Mr Oshana shortly before the attack.

In dismissing the appeal against conviction, the New South Wales Court of Criminal Appeal observed (at [30]) that the O’Leary principle will apply to evidence:

of the same connected series of events or evidence of conduct by an accused person evincing a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence…

The Court doubted whether evidence of the prior conduct of the appellant (in staring at Mr Oshana) was admissible pursuant to this principle, but held that it was not necessary to decide, as the trial judge had directed the jury that the evidence was “of no moment” in the trial.

(iv)In R v Player [2000] NSWCCA 97; 217 ALR 578, the appellant was charged with malicious damage for smashing a shop window. The New South Wales Court of Criminal Appeal upheld the trial judge’s decision to admit evidence that the defendant was seen at the same time in an aggressive and intoxicated state, kicking over rubbish bins and smashing a sign. In so holding, Smart AJ (with whom Priestley JA and Foster AJA agreed) found that the “smashing of the window was part of the same connected series of events, namely ‘a drunken, aggressive and destructive rampage in the early hours of Saturday morning’”: Player at [17].

(v)In R v Serratore [2001] NSWCCA 123, the appellant was found guilty by jury on a single count of murder. The prosecution had relied on evidence of conversations between the appellant and a witness, in which the appellant was repeatedly asking and attempting to persuade the witness to commit the murder. The jury were directed that this evidence could establish that the appellant had an intention to murder the deceased at the time of these conversations.

In dismissing the appeal against conviction, the Court upheld the trial judge’s determination that the conversations were “reasonably proximate” (at [40]) to the murder to permit the jury to use the evidence to draw inferences in respect of the appellant’s state of mind. The Court held that the “conversation and the murder are part of a continuum” (at [40]) and a five-month time lapse was not sufficient to break the continuum.

(vi)In R v Mostyn [2004] NSWCCA 97, the appellant was charged with having assaulted and inflicted grievous bodily harm upon his wife. His defence was self-defence. When police attended, the appellant made several threats to police, including “back off, or I’ll kill you”.

The New South Wales Court of Criminal Appeal upheld the trial judge’s decision to admit this evidence. McColl JA (with whom Studdert and Howie JJ agreed) held that the defendant’s aggressive behaviour towards police “was relevant to the appellant’s state of mind at the time of the alleged earlier assault on the complainant” (at [135]). The Court held that this evidence was “transaction evidence”, because the appellant’s behaviour towards police and his alleged violence towards the complainant were “in very close temporal proximity” at [135].

(vii)In R v Fleming; R v Maher [2017] SASC 16, the defendants were charged with murder. The Crown case was that after disembarking from a train, the defendants were involved in an aggravated robbery with the deceased. Separately to the murder charge, the defendants pleaded guilty to a robbery of another person who also disembarked from the same train that night. The prosecution sought to adduce evidence of this robbery as evidence of a connected “transaction” of events and evidence of the defendants’ states of mind at the time of the altercation with the deceased.

In holding that the evidence was inadmissible, Doyle J characterised the O’Leary principle as “relatively narrow” (at [56]). His Honour noted that although the incidents were close in time and location, there was “a meaningful separation between the two incidents” and the incidents did not reflect “a continuum of events” or a pattern of behaviour such that it could be properly described as transaction evidence (at [60]).

(viii)In Haines v R [2018] NSWCCA 269, the appellant was found guilty of two counts of murder. The appellant was a registered nurse at an aged care facility. The Crown case was that she murdered two residents by injecting them with a lethal dose of insulin. The appellant appealed against her conviction on a number of grounds, including grounds related to tendency and coincidence reasoning.

The Court rejected the appellant’s contention that tendency or coincidence reasoning had been employed in the trial, holding that it was apparent that “the two murders were treated as forming part of a single transaction” (at [218]). The Court held that “each murder could not truly be understood without reference to the evidence of the other” (at [229]). Because the murders were treated as part of a single transaction, “there was no difficulty in evidence relating to one murder being admissible in relation to the other” (at [228]).

33․Ultimately, each of these decisions demonstrate that whether evidence is admissible as evidence of a continuing transaction or a continuing state of mind is “one of fact and degree, to be determined by reference to the particular evidence and matters in issue”: Fleming at [56].

34․In particular, as Doyle J held in Fleming at [58], considerations that may be relevant to the determination of whether two events are sufficiently connected so as to amount to a “transaction” or “evidence of a continuing state of mind” may include:

(i)The proximity in place and time of the events in question;

(ii)Whether there is commonality in the actors involved in the events in question;

(iii)How many acts are involved in the events in question; and

(iv)Whether the subject conduct would be “unintelligible or at least artificial”, without the inclusion of the other conduct.

35․Consideration of these matters will also require an assessment to be made of whether the state of mind alleged is capable of being viewed as a “continuing” state of mind. Where the process of reasoning involves using past conduct as “circumstantial evidence from which it might be inferred that it was likely that the defendant acted in a certain way”, or had a certain state of mind on a later occasion, the reasoning employed will be tendency reasoning, which requires satisfaction of ss 97 and 101 of the Evidence Act: see similarly Fleming at [55].

Determination

36․As outlined above, the question whether evidence is admissible as evidence of a continuing state of mind or transaction is one of “fact and degree”, to be determined by reference to the particular evidence and the facts in issue.

37․In the present case, I do not consider that the evidence of the incident when the accused pushed the deceased’s head into the bed is admissible as evidence of a continuing transaction or a continuing state of mind.

38․I acknowledge that the earlier event involved the same actors (the deceased and the victim) in the same general vicinity and over a relatively short period of time (2 hours). However, as Mr McLaughlin submitted on behalf of the accused, neither the accused’s behaviour towards the victim, nor his state of mind can be described as “continuing” between 2:00am and 4:00am.

39․Specifically, before the alleged assault, the accused was attempting to leave the deceased’s home. After the alleged assault, the accused voluntarily left the deceased’s home. When he returned, and the argument between the accused and the deceased resumed, the accused again attempted to leave, and in fact walked away from the deceased and her car. It was only when the deceased climbed into the accused’s car (in an attempt to recover her vapes) that the accused returned. In other words, between 2:00am and 4:00am, the accused did not display a continuing intention to assault the deceased.

40․As noted above, in his oral submissions, the prosecutor particularised the state of mind which it sought to be inferred from the earlier assault as being “animosity, rising to a level of violence”.  I note that the Crown Case Statement indicates that the Crown alleges that the accused’s state of mind is one of “reckless indifference”. It is somewhat difficult to see how proof of the particularised state of mind would advance the Crown case alleged. More significantly however, for the reasons described above, even taken at its highest, the evidence is not sufficient to support an inference that the accused had this continuing state of mind between 2:00am and 4:00am. At most, the evidence demonstrates that, at a particular point in time (2:00am), the accused held that state of mind.

41․The prosecution wishes to invite the jury to draw an inference that because the accused held that state of mind at 2:00am, it is more likely that the accused held the same, or a similar state of mind, when he was driving his car with the deceased on the bonnet at 4:00am. In my view, this is tendency reasoning. The prosecution does not submit that the evidence is admissible as tendency evidence. Nor could the evidence satisfy ss 97 and 101 of the Evidence Act.

42․The prosecution submitted that the prejudicial effect of the evidence could be reduced by the giving of an anti-tendency direction. However, where the reasoning that the prosecution seeks to invoke is itself tendency reasoning, such a direction could not assist.

43․Apart from the drawing of an inference concerning the deceased’s state of mind, the evidence has little probative value. The impugned evidence is not necessary to understand the events that occurred at 4:00am. The accused properly accepts that evidence of the 2:00am argument is admissible as context evidence. The Crown’s allegations as to what occurred during the 4:00am incident would not be unintelligible or artificial if the evidence of the alleged assault were excluded.

44․Finally, I note that the form in which the evidence was given by [the young person] is itself problematic. In particular, in the EICI, [the young person] referred to the accused “always…doing it” (presumably referring to assaulting the deceased). [The young person] described seeing little of the actual assault in question. She stated “I don’t know how but he split it [the deceased’s eyebrow] there open”.

45․For the reasons outlined above, I do not accept the prosecutor’s contention that the evidence of the assault may be used by the jury to infer that the accused had an “ongoing state of mind”. The evidence has little probative value. The evidence is also highly prejudicial, as it encourages, and indeed, invites tendency reasoning. I am not satisfied that jury directions will sufficiently guard against this prejudice.

46․As the prejudicial effect of the evidence outweighs its probative value, QA 78 to 88 will be excluded under s 137 of the Evidence Act.

The second objection: lay estimate of speed

47․The second objection is to [the young person]’s estimate of the speed the accused was driving at whilst the deceased was on the bonnet. In particular, objection is made to the following evidence:

Q162. And how fast do you think the car might have been going?

A Oh, 60, 70 maybe. I don’t know.

Q163. Yep.

A Oh, I don’t know.

Q164. It’s all good. I don’t expect you to know. It’s just your opinion. Sorry.

48․Whilst Counsel for the accused accepted that a lay opinion could be given of the speed of a vehicle, he submitted that the evidence was not admissible under s 78(2)(b) of the Evidence Act when it was “expressed with such uncertainty”.

49․In the above exchange, the words “I don’t know” can be understood in one of three ways:

(i)[The young person] estimated the car to be travelling at 60 – 70km/hr, but she could not say which;

(ii)[The young person] estimated the car to be travelling in the vicinity of 60 – 70km/hr, but she could not be precise; or

(iii)[The young person] could not give an estimate of the speed at which the car was driving at all.

50․If an objection had been raised to this evidence prior to the pre-recorded hearing, a voir dire could have been held to clarify this aspect of the witness’ evidence with her. However, no objection was made to the evidence at that time, and no questions were asked of [the young person] about her estimate of speed in the pre-recorded hearing.

51․It is extremely regrettable that this objection was not made prior to the taking of the pre-recorded evidence. I was told that there is a practice for objections to only be made after the pre-recorded evidence is complete. Such a practice should not apply to any evidence that could be admitted following further examination of the witness, and should certainly not extend to objections to the EICI. Any objections to an EICI should be made prior to the commencement of any cross-examination. This will enable the opposing party to determine whether to attempt to adduce the evidence in an appropriate form.

52․However, despite the unsatisfactory way in which these objections have been raised, it is my duty to ensure a fair trial. Taking into account the whole of the exchange, I am of the view that the last construction (that is, [49] (iii)) is the proper construction. After giving the opinion as to speed, [the young person] expressed her uncertainty twice, saying “I don’t know” and then “I don’t know”. The questioner then responded, “I don’t expect you to know.” In these circumstances, I accept the accused’s submission that [the young person]’s estimate of speed is too uncertain for it to constitute a lay opinion under s 78 of the Evidence Act. I also accept that the prejudicial effect of the evidence outweighs its probative value, such that even if the evidence were admissible under s 78, it should be excluded under s 137 of the Evidence Act.

53․Accordingly, I allow the accused’s application for the exclusion of Question 162 to Question 164 in [the young person]’s EICI. Those questions and answers are to be edited from [the young person]’s EICI.

The third objection: evidence that [the young person] did not see when the deceased fell from the bonnet

54․The third objection relates to the following evidence (A 165):

…but, like, I didn’t see, like, [the deceased] come off the bonnet or anything. Like, I didn’t see any of that…

55․The accused submits that that evidence of what the accused “did not see” is not probative to any fact in issue in the trial.

56․The prosecution submits that the evidence is “plainly relevant” in that [the young person]’s evidence is that she last saw the deceased on the bonnet, and next saw her off the bonnet, but did not see her fall of the vehicle. The prosecution submits that there is no danger of the jury misusing the evidence.

57․I agree with the prosecution’s submission. [The young person]’s evidence is that she saw the deceased on the bonnet of the car. There is no dispute at some time, that the deceased came off the bonnet of the car. [The young person]’s evidence that she did not see the deceased come off the bonnet is relevant and not prejudicial.

58․Accordingly, I reject the accused’s application for the exclusion of A165 in [the young person]’s EICI. That answer is not to be edited from [the young person]’s EICI.

Orders

59․The orders of the Court are:

(1)I allow the accused’s application for the exclusion of Questions and Answers 78 to 88 in [the young person]’s Evidence in Chief Interview. Those questions and answers are to be edited from [the young person]’s Evidence in Chief Interview;

(2)I allow the accused’s application for the exclusion of Question 162 to Question 164 in [the young person]’s Evidence in Chief Interview. Those questions and answers are to be edited from  [the young person]’s Evidence in Chief Interview;

(3)I reject the accused’s application for the exclusion of A165 (starting from “but, like” to the end of the answer) in [the young person]’s Evidence in Chief Interview. That answer is not to be edited from the Evidence in Chief Interview.

I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: Ariella Bucci

Date: 30 May 2023