Director of Public Prosecutions v Pandilovski (Ruling No 2)

[2023] VSC 148

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0371

THE DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
ZORAN PANDILOVSKI	Accused

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JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2023
DATE OF RULING:	29 March 2023
CASE MAY BE CITED AS:	DPP v Pandilovski (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 148

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EVIDENCE – Murder – Accused fatally choked his estranged wife – Whether accused did so with murderous intention – Accused to plead not guilty to murder but guilty to manslaughter by unlawful and dangerous act – Whether evidence of previous representations by the deceased admissible hearsay evidence under s 65(2)(b) or (c) of the Evidence Act 2008 – Hearsay evidence of accused assaulting and threatening to assault the deceased – Whether hearsay evidence relevant to a fact in issue, namely, whether accused killed deceased with murderous intention – Alleged violent incidents occurred more than a year before deceased’s death – Evidence irrelevant as to murderous intention – Evidence inadmissible under s 56(2) of the Evidence Act 2008 – Alternatively, probative value outweighed by danger of unfair prejudice – Evidence inadmissible under s 137 of the Evidence Act 2008.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N. Hutton	Office of Public Prosecutions
For the Accused	Mr D. Hallowes S.C. with Mr C. Farrington	Stephen Andrianakis and Associates

HIS HONOUR:

1. The accused is charged with murdering his estranged wife on 14 July 2020. I have summarised the prosecution case in Ruling No 1[1] and will not repeat that summary here.

   [1][2022] VSC 552R.

1. This is a ruling regarding the admissibility of evidence of previous representations by the deceased which are the subject of the prosecution’s hearsay notice dated 19 October 2022 (“the impugned evidence”).[2] 

   [2]This is the third hearsay notice filed and served by the prosecution. It supersedes the earlier two.

The impugned evidence

1. According to the hearsay notice, which I attach to this ruling, the impugned evidence includes hearsay evidence of the accused assaulting the deceased by choking, headbutting, pushing and grabbing her. The impugned evidence also includes hearsay evidence of threats by the accused to choke or strangle her. It is also alleged that the accused on one occasion said to the deceased “If you take my son, I will kill you.”

Relevance of previous representations

1. There is no issue that the accused killed his estranged wife by compression of the neck (ie, by choking her). Indeed, the accused has foreshadowed through his counsel that when he is arraigned before the jury panel, he will plead not guilty to murder but guilty to manslaughter. What is in dispute is whether he killed the deceased with  murderous intent, namely, with an intention to kill or to cause really serious injury. 

1. None of these alleged assaults or threatened assaults are said to have occurred in close proximity to the deceased’s death on 14 July 2020. According to the hearsay notice, the most proximate assault or threatened assault is said to have occurred between 3 May 2019 and 12 June 2019 at which time the accused is said to have threatened to choke the deceased. That is more than a year before the deceased’s death. 

1. How does the prosecution say the impugned evidence is relevant? How does it rationally make it more probable that the accused had murderous intent when he killed the deceased?

1. The prosecution seems to suggest that the evidence is relevant because it shows the accused’s level of animosity towards the deceased which in turn makes it more likely that he killed her intending to do so or at least intending to cause really serious injury. In other words, the prosecution suggests that the evidence of prior animosity is evidence of motive.

1. The difficulty with this line of reasoning is the temporal gap between the alleged incidents of violence and the time of the deceased’s death. That difficulty is compounded by the fact that the deceased saw no need to extend the intervention order against the accused which expired in January 2020 and, furthermore, she told her mother that her reason for not extending the intervention order was that the accused was “doing counselling and had appeared calmer, friendlier and more affectionate”.[3] Nor can the prosecution point to some proximate dispute between the accused and the deceased over the accused’s contact with his son, Thomas, which may have rekindled the accused’s animosity towards her and which may have given greater significance to his earlier threat “If you take my son, I will kill you.”

   [3]See the Revised Summary of Prosecution Opening dated 13 April 2022 at [24].

1. To my mind, it is not open on the impugned evidence to rationally infer that proximate to the time of the killing the accused harboured a level of animosity towards the deceased which gave him a motive to act with murderous intent.

1. Consequently, I am not persuaded that the impugned evidence rationally increases the probability that, when the accused killed the deceased in July 2020, he did so with murderous intent.

1. The evidence is therefore inadmissible under s 56(2) of the Evidence Act 2008 because it is irrelevant.

Probative value outweighed by danger of unfair prejudice

1. If I am wrong about relevance, I consider that the evidence, even if it is admissible hearsay under s 65(2)(b) or (c) of the Evidence Act 2008, is of modest probative value in relation to the question of murderous intent, for the same reasons I gave when considering relevance. However, I consider that the risk of unfair prejudice is high. Because it would be evidence of past domestic violence, the jury may misuse the evidence: it may trigger a desire to punish and the jury may not be as rigorous in applying the criminal standard of proof to the central issue in dispute, which is whether the prosecution have proved murderous intention beyond reasonable doubt. There is also a real risk that the jury would use the evidence for impermissible tendency reasoning – namely, that the accused is the type of person who would intentionally kill or cause really serious injury to his estranged partner.[4] In other words, even if the impugned evidence was admissible hearsay, its probative value is outweighed by the danger of unfair prejudice and so, in my view, it is inadmissible under s 137 of the Evidence Act 2008.

   [4]I note that the prosecution withdrew its Tendency Notice.