R v Basham (Ruling No 1)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0229
S ECR 2019 0230

THE QUEEN	Crown
v
ADRIAN JAMES BASHAM	Accused

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATES OF HEARING:	9 and 10 December 2020
DATE OF RULING:	18 June 2021
CASE MAY BE CITED AS:	R v Basham (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2021] VSC 349

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CRIMINAL LAW – Accused charged with murder - Deceased was the estranged wife of the accused – Accused charged with three counts of rape of deceased – Rape charges listed for contested committal hearing at time of deceased’s death - Evidence of rape comprised largely of hearsay representations made by deceased in sworn police statements – All charges appear on single indictment.

CRIMINAL LAW – Whether murder charge should be tried separately from rape charges – Whether accused prejudiced by joinder of charges – Whether evidence of all charges is cross-admissible – Application for severance refused – Criminal Procedure Act 2009 (Vic) ss 3(1) and 193 and Rule 5 of Schedule 1.

EVIDENCE – Hearsay evidence – Relationship evidence - Prosecution filed three hearsay notices comprising hearsay representations by the deceased as to her relationship with the accused – Whether relationship evidence probative of the circumstantial case – Whether hearsay representations satisfy any exception to the hearsay rule – Whether relationship evidence should be excluded due to prejudicial effect – Evidence Act 2008 (Vic) ss 55(1), 56, 59, 65(2)(b), 65(2)(c), 66A, 67 and 137 – Jury Directions Act 2015 (Vic) s 26.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms N Rogers SC with Mr L Cameron	Office of Public Prosecutions
For the Accused	Mr A Lewis with Mr S Norton	Stary Norton Halphen Lawyers

HER HONOUR:

Adrian Basham is charged with the murder of his wife, Samantha Joy Fraser, on 23 July 2018. He is also charged with three counts of rape of Ms Fraser in respect of incidents alleged to have occurred in 2014 and 2016.

All four counts appear on a single indictment.

Three separate, but related pre-trial issues arise in this context.

The first is severance. The accused concedes that the joinder of the charges is permitted by the Criminal Procedure Act 2009 (‘CPA’),[1] but argues pursuant to s 193(1) of the CPA that the Court should order that the murder charge be tried separately from the rape charges.
[1]CPA, Rule 5 of Schedule 1 and definition of ‘related offences’ in s 3(1).

The second is the admissibility of ‘relationship evidence’[2] and ‘context evidence’[3] upon which the Crown seeks to rely as demonstrating a pattern of controlling and aggressive behaviour by the accused towards the deceased from which relevant, logical and reasonable inferences as to all four charges may be drawn.
[2]Jury Directions Act 2015 (‘JDA’), s 26(c).
[3]JDA, s 26(d).

The third is the admissibility of hearsay representations made by the deceased to a number of witnesses. The relationship and context evidence is largely comprised of such representations. Additionally, the evidence for the rape charges is, with one exception, also comprised of hearsay representations made by the deceased.

The hearsay representations, numbering some 214 in total, are detailed in three separate notices filed pursuant to s 67 of the Evidence Act 2008 (‘Act’). Of these, 120 are no longer pressed by the Crown, 34 are conceded by the defence and 60[4] are in contention (in whole or in part). Some 22 witnesses give evidence of these representations.
[4]This includes representations 122 and 125 which are, as explained below, duplicate representations. Ultimately these will be figured as a single representation.

The accused variously challenges the admissibility of the relationship and context evidence on the basis of its relevance, its inability to satisfy any exception to the hearsay rule and its prejudicial effect.

Before considering these issues it is convenient to summarise the Crown case.

The Crown case - murder

Ms Fraser and the accused met in late 2005 or early 2006. They married in March 2007. They had three children, born in 2009, 2011 and 2013, and settled in Cowes, Phillip Island. Ms Fraser was a psychologist who, at the time of her death, worked part-time at the Cowes Medical Centre. The accused worked in construction as a ‘fly-in, fly-out’ (‘FIFO’) worker in Western Australia. His roster allowed him one week at home between one month away.

Ms Fraser and the accused separated in early 2017. The accused moved from the family home at 19 Seagrove Way, Cowes and resided variously in Paynesville, Chelsea Heights and San Remo. Family Court proceedings were initiated with respect to child custody arrangements and the division of assets.

On 28 April 2017 Victoria Police first applied for an intervention order in favour of Ms Fraser against the accused. From 19 May 2017, intervention orders prohibited the accused from attending or being near 19 Seagrove Way. Contact between the accused and children continued until September 2017, when Ms Fraser declined to facilitate any further access.

In addition to allegations of abusive and controlling behaviour, Ms Fraser also made allegations of sexual offending against her by the accused to police. She made two sworn statements on 3 July 2017. The accused was arrested and interviewed in relation to the allegations on 4 July 2017. Charges of rape, including what are now counts 1 to 3 of the indictment, were preferred against him on 24 August 2017. Those charges were listed for a contested committal hearing at the Latrobe Valley Magistrates’ Court on 30 July 2018.

20 to 22 July 2018

In the very early hours of 20 July 2018 the accused arrived at his sister’s home in Chelsea Heights. He had just returned from some days in New Zealand. Entry gate surveillance cameras at Melbourne Airport show the face of the accused to be absent visible injuries upon his re-entry to Australia on 19 July 2018.

At 10.08am on 20 July 2018 CCTV footage from a camera affixed to the front of the accused’s sister’s house depicts a male hand covering the camera with a yellow post-it note (or something similar) and then removing it 37 seconds later. Immediately thereafter the accused was recorded preparing his motorcycle and luggage to leave the address. He did so, at 10.26am, wearing a distinctive black and white motorcycle jacket and a black and green ‘Shark’ motorcycle helmet.

The accused had left his usual mobile telephone handset at his sister’s address and instead took with him the handset of Kylie Munro, a woman with whom he had begun a relationship.

The accused rode to Phillip Island, where he stayed at one address for two nights and then at the unoccupied house of a friend at 6 Park Road, San Remo on the night of 22 July 2018.

At about 11.30am on Sunday 22 July 2018, the accused rode his motorcycle to the Cowes area and rode past Ms Fraser’s Seagrove Way house. That journey was captured on various CCTV footage.

22 July 2018 was the 38^th birthday of Ms Fraser. She was inside her home with her children. Family and friends visited to celebrate with her.

Between about 5.30pm and 6.30pm the accused visited a friend, Cameron Brown, who lived in Park Road, San Remo. The accused had no visible injuries to his face. He ate dinner there and made an arrangement to go motorcycle riding with Mr Brown the following morning. The accused failed to keep that appointment and then did not respond to a text message from Mr Brown.

23 July 2018

At about 7.20am the accused left the San Remo area and travelled by motorcycle from San Remo to Cowes. His movement is established by Optus GPRS records associated with Ms Munro’s mobile telephone service and various CCTV footage which captured his distinctive motorcycle jacket and helmet. He arrived in the vicinity of Settlement Road and Seagrove Way at about 7.37am.

The Crown case is that he parked his motorcycle near Ms Fraser’s house and waited.

At about 8.52am on Monday 23 July 2018 Ms Fraser left her home in Seagrove Way to drive her three children to the nearby Cowes Primary School.

About three minutes after she had left, the accused approached her address on foot. His movement is captured by CCTV footage. And a man the Crown say was the accused was observed by a witness entering a garden bed in the heavily vegetated front yard of the house at about 9.00am.

The Crown case is that the accused then waited for Ms Fraser to return.

After Ms Fraser had completed the school run, she attended the G’day Tiger café in the main shopping district of Cowes. She met two friends there. She was observed to be wearing a white top and black trousers. By about 11.22am she had returned home and parked her car in the garage.

When Ms Fraser did so, the Crown case is that she was assaulted by the accused in the garage. That assault resulted in a number of injuries, including bruising to the head and a poorly developed focal traumatic axonal injury to the brain. The accused sustained a scratch to his nose. The accused then strangled the deceased using a length of rope before hanging her using the rope looped over the track of the sectional garage door. Finally the accused manipulated the scene in an attempt to make it appear that Ms Fraser had committed suicide by hanging, including by placing a small step-ladder on its side. When he left the accused took with him Ms Fraser’s white top.

At 11.36am a friend called the mobile telephone number of Ms Fraser. The call went unanswered. There was no further activity on Ms Fraser’s telephone service after that time. Ms Fraser failed to attend an appointment in Wonthaggi at 12.00pm.

Staff from Cowes Primary School notified police that Ms Fraser did not collect her children at the end of the school day. Police attended 19 Seagrove Way at about 5.05pm and forced entry to the garage. Upon the discovery of Ms Fraser’s body a crime scene was established and an investigation commenced.

Further conduct by the accused

Sometime after 11.00am on 23 July 2018 the accused was observed by a witness to be standing outside the garage door to 19 Seagrove Way cleaning something on top of a rubbish bin. The garage door was raised about two feet from the ground.

At 12.04pm CCTV footage depicts the accused running away from 19 Seagrove Way with something apparently stuffed up the front of his jacket. A witness observed a man the Crown say is the accused walking out of Seagrove Way onto Settlement Road sometime between 11.45am and 12.15pm.

Commencing at 12.13pm and ending at 12.33pm, various CCTV cameras captured the accused riding his motorcycle, wearing the distinctive black and white jacket, from Settlement Road, Cowes to Newhaven.

Between 12.20pm and 1.00pm a witness observed what he believed to be the accused’s motorcycle parked on the footpath outside 6 Park Road, San Remo.

Subsequently the accused rode his motorcycle to Bairnsdale. At 3.48pm he sped past a marked police car in East Bairnsdale. He was intercepted by police and warned about his driving behaviour. He behaved emotionally, crying and complaining about his separation from Ms Fraser.

The accused visited a friend in East Bairnsdale before travelling to his father’s home in Paynesville, arriving between about 5.15pm and 5.30pm. Upon his arrival, his father noticed a scratch to the right side of his nose. The accused told his father that he might have sustained the scratch while going for a walk, and that he had been for a walk on Lyrebird Track en route to Paynesville.

At 1.57am on 24 July 2018 police telephoned the accused’s father in order to locate the accused and arrange to notify him in person of the death of Ms Fraser. The accused was reticent to meet with police. After a 52 minute call, an arrangement was made for uniformed police to attend and speak to him at his father’s house. They attended at about 3.00am and spoke to both the accused and his father. The accused remained silent during the exchange.

On 24 July 2018 the accused spoke to his friend, Michael Lee, by telephone and said that Ms Fraser was deceased, that he had been woken by police about 2.00am or 3.00am and informed of her death. He said that he had not been near the island at the time of her death.

At 12.48am on 25 July 2018 the accused arrived at his sister’s Chelsea Heights address with his father. The CCTV camera at the address captured footage of the accused covering the right side of his nose with a piece of paper.

Throughout 24 and 25 July police had a series of communications with the accused’s legal representatives. Initially this was for the accused to provide a statement, but as a result of information gathered, a decision was made during the afternoon of 25 July to treat the accused as a suspect. An arrangement was made for the accused to surrender himself for interview in the company of his lawyer at 9.00am on 26 July 2018.

The accused duly attended, was processed and interviewed. He gave no comment to the questions asked. The accused was released without charge at about 1.30pm. During that time, he underwent a physical examination by a Forensic Medical Officer. Photographs of a two centimetre abrasion to the accused’s nose and a superficial scratch of three centimetres to the inner aspect of his right forearm were taken.

On 28 July 2018 the accused attended two different addresses on Park Road, San Remo when police were present taking written statements from two witnesses. In the presence of police he told each of them not to cooperate with the investigation. When challenged by the informant, the accused approached him and attempted to physically menace him.

The accused then left Park Road before re-attending and getting access to 4 Park Road. He was observed by a witness to exit the premises by scaling the rear fence. He had an object stuffed up the front of his shirt. Upon seeing the witness the accused said to her words to the effect of ‘if the cops come around, you haven’t seen anything …’.

Police investigation

Between 23 and 28 July 2018, the crime scene at 19 Seagrove Way was forensically examined, a post mortem examination of the deceased was conducted and various search warrants were executed.

The post mortem examination, conducted on 24 July 2018, detailed a number of anatomical findings. Blunt force trauma had been applied to the face, neck, arms and legs of the deceased, consistent with an assault. Microscopic analyses of sections taken from bruises showed no signs of healing and are consistent with the bruising being proximate to the time of death. There was evidence of a poorly developed focal traumatic axonal injury to the brain. A significant number of separate injuries consistent with an assault were documented. The cause of death was found to be ‘hanging in the setting of multiple blunt force injuries’.

A number of exhibits were subject to forensic biological examination. As a result, there is strong to very strong support for the proposition that the accused contributed to DNA found on the rope used to hang Ms Fraser, including on the outer surface of the knot and the looped section of the rope below the knot. Further there is extremely strong support for the proposition that the accused contributed to the DNA found under the fingernails of Ms Fraser’s left hand and very strong support for the same proposition with respect to the fingernails of her left hand.

On 2 August 2018 the accused was arrested in Bairnsdale and charged with murder.

Subsequently, police obtained a court order for a compulsory forensic procedure (DNA) with respect to the accused. He refused to comply with the order and force was required to obtain a swab of his saliva.

The Crown case - rape

The Crown case with respect to the three counts of rape (counts 1 to 3) draws largely on the sworn statements made by Ms Fraser on 3 July 2017.

Charge 1 – in the pantry

Ms Fraser told police that on an occasion in 2014 the accused had just returned home from work in Western Australia and, as was his habit, demanded sex. He asked her to go to the bedroom, but she refused because the children were home and said to the accused words to the effect that he would ‘have to wait for tonight’. Ms Fraser said that at some stage during the afternoon she entered the large, walk-in pantry. The accused followed her and locked the pantry door from the inside.

The accused undid Ms Fraser’s jeans as she was facing away from him. She said something like ‘what are you doing? The kids are out there. No’. Ms Fraser told police that the accused nonetheless pulled down her underwear and put his penis into her vagina. He moved his penis in and out of her vagina for only a minute or two before he ejaculated inside her vagina. The accused then unlocked the pantry and left.

Ms Fraser told police that this sort of thing had been happening since 2009 and that was why she ‘stood there and let it happen’. Telling the accused ‘no’ did not work so she just stood there and let him have his way.

In addition to the sworn statement of Ms Fraser, the Crown relies upon two other hearsay representations made by Ms Fraser to her friends about this incident, as well as an alleged admission by the accused.

As to the latter, Terence Melvin, a psychologist will give evidence of a joint counselling session with the accused and Ms Fraser on 21 April 2018 during which Ms Fraser told him that the accused had pushed her into a cupboard at the family home and forced her to have sex with him. Mr Melvin asked the accused whether that was what had happened. The accused replied ‘yes’. When Mr Melvin told the accused that this amounted to sexual assault or rape, the accused tried to justify his behaviour by saying that it was Ms Fraser’s fault for not being clear and communicating with him. Mr Melvin recalls that Ms Fraser then became visibly upset and said to the accused words to the effect of ‘this is what you always do’ before leaving the room.

Charge 2 – Whilst R was in the bed

Ms Fraser told police that on a different occasion in 2014 the accused had non-consensual sex with her at their home in Cowes whilst she was asleep and their three year old child R was in the same bed. She awoke to the accused thrusting his penis into her vagina. Ms Fraser did not want R to wake and see, hear or feel what was going on, so she pushed back into the accused to create physical distance between her and R. After the accused ejaculated, he rolled over and went to sleep. Ms Fraser then got out of bed and took R back to his own bed. Ms Fraser later told the accused not to have sex with her when the kids were in the bed or when she was asleep.

Charge 3 – Whilst Ms Fraser was asleep

Ms Fraser told police that on an occasion in October 2016 when the accused had returned from Western Australia they had gone to bed together and she had fallen asleep fully clothed. She later woke up to a feeling of coldness and realised that the accused had pulled down her pants, put lubricant on his penis and then put his penis in her vagina. Ms Fraser said that she froze for a moment before pushing herself off the accused and getting out of bed. She said to him words to the effect of ‘you can’t do that, I was asleep, that is rape’ before going and sleeping in one of the children’s rooms. Ms Fraser told police that this was the last time the accused had raped her.

In relation to the second two charges of rape, the Crown relies upon other hearsay representations by Ms Fraser to a friend and counsellors that there were many occasions during the marriage in which she would wake to find the accused having sex with her.

Defence Response

In his defence response, the accused denies the characterisation of his relationship with Ms Fraser as being controlling and abusive. He denies the allegations of family violence.

With respect to the charge of murder, the accused admits he attended the Cowes area, and 19 Seagrove Way specifically, on 23 July 2018. He states that he did so at the invitation of Ms Fraser. He says that they argued and he then left the premises. He denies causing her death.

With respect to the charges of rape, the accused admits to having sex with Ms Fraser throughout the course of their relationship but denies ever engaging in non-consensual sex.

Issues in the trial

It follows that the major issues in the trial are relatively confined.

With respect to the charge of murder, the issue is causation: whether the accused killed Ms Fraser or whether she suicided.

With respect to the three counts of rape, the issue is whether the incidents of non-consensual sex occurred.

Severance

I turn first to the issue of severance.

Defence submissions

The defence relies upon s 193(a) and (b) of the CPA to argue that the charge of murder should be tried separately from the charges of rape. It is submitted that it is uncommon for an indictment to contain any other charges along with a charge of murder. It is argued that the accused will be prejudiced in his defence of the murder charge if the rape charges are on the same indictment.

The defence identifies the admissibility of the evidence of the alleged rapes in the trial for murder as a central issue in the resolution of the question. Nonetheless the application for severance is maintained even if that evidence is ruled to be admissible.

The historical practice of a charge of murder being preferred as a single count is noted in this context. While the traditional reluctance to allow joinder of other charges with a murder charge has been relaxed somewhat, the defence presses the need for careful scrutiny of the effect of joinder on the complexity of the conduct of the trial and judicial directions as well as to the occasioning of impermissible prejudice to the accused.

In this regard, the defence points particularly to the sheer number of hearsay representations and the differential (potential) admissibility of the relationship evidence as between charges 1 and 2 on the one hand and charge 3 on the other, as well as between charges 1, 2 and/or 3 and charge 4 on the other.

Prosecution submissions

Referring to the relevant provisions of the CPA with respect to joinder of charges in a single indictment, the prosecution submit that there are two issues to consider with respect to severance. First, whether Rule 5 of Schedule 1 has been complied with in so far as the charges on the indictment are for ‘related offences’. Second, whether the court should exercise its discretion under s 193 to order severance.

As to the first issue, the prosecution submits that there is a sufficient nexus between all four charges. Each involves violence against the deceased. It is submitted that her murder is a culmination of that violence.

The evidence to be led either provides context for the other charges or is directly relevant to establishing or negating proof of an element which must be proved in another charge. The relationship evidence makes it more likely that the accused committed all of the offences charged. The admissibility of the relationship evidence is so interconnected with the issue of severance that the rape charges cannot be separated from the murder charges. The prosecution submits that it is clear that there would be one trial for the three charges of rape. The evidence relevant to each charge is cross-admissible to the other two. It is further submitted that the evidence relevant to charges 1 to 3 is relevant not only to motive, but in assisting the jury decide between the competing explanations for the death of the deceased, being murder or suicide.

As to the second issue, it is submitted that there must be a balance between avoiding unnecessary prejudice to the accused and the public interest in the efficient allocation of judicial resources, consistency of verdicts, convenience of witnesses and finality of litigation. When evaluating any prejudice to the accused, the role of judicial directions must be considered. Further, the court must assess the complexity of the evidence and issues in the trial.

In summary it is submitted that the indictment should not be severed because:

(a) There is one complainant / deceased common to all four charges;

(b) There is a sufficient nexus between the charges;

(c) There are 18 witnesses common to the rape charges and the murder charge, who would give identical evidence twice in the event of separate trials;

(d) The rape charges are cross-admissible with the murder charge;

(e) The convenience in having one trial in terms of resources is great;

(f) The relationship between the accused and the deceased, including the rape allegations subject of charges 1 to 3 is fundamentally linked with the consideration of the fact in issue regarding charge 4;

(g) The rape charges are relevant to motive regarding charge 4; and

(h) The accused will not be unfairly or impermissibly prejudiced because virtually the same evidence would be led at separate trials.

Legal considerations
Statutory provisions

The joinder of charges in a single indictment is authorised by Rule 5 of Schedule 1 of the CPA, which provides:

Joinder of charges

(1) A charge-sheet or indictment may contain charges for related offences, whether against the same accused or different accused.

(2) If more than one offence is charged in a charge sheet or indictment, the particulars of each offence charged must be set out in a separate, consecutively numbered paragraph.

…

Section 3(1) of the CPA defines ‘related offences’ as offences that are founded on the same facts or form, or are part of a series of offences of the same or a similar character.

Section 193 of the CPA provides, relevantly:

Order for separate trial

(1) If an indictment contains more than one charge, the court may order that any one or more of the charges be tried separately.

…

(3) The court may make an order under subsection (1) … if the court considers that –

(a) the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment; or

…

(c) for any other reason it is appropriate to do so.

Authority

As noted above, the defence concedes, appropriately, that the charges are properly joined.[5]
[5]See De Jesus v The Queen (1986) 68 ALR 1, 15 (Dawson J) (with respect to s 585 of the Criminal Code (WA)); R v Reid [1999] 2 VR 605 (with respect to Rule 2 Schedule 6 of the Crimes Act 1958, the forerunner to Rule 5 Schedule 1 of the CPA which was in substantially the same terms, namely ‘charges for any offences may be joined in the same presentment if those charges are founded on the same facts or form or are part of a series of offences of the same or similar character.’)

Rather the issue here is whether separate trials should be ordered pursuant to s 193(3)(a) and/or (c) of the CPA.

Previous authority held that the joinder of charges with a charge of murder should only be permitted in exceptional circumstances.[6] In 2005 Vincent J said:

Although there are examples of situations in which one or more counts of murder have been joined in a single presentment with counts relating to other offences about which evidence was to be given in the trial, to my understanding the inclusion of separate counts to encompass those offences has never been required. Indeed, the joinder of such additional counts was regarded as inappropriate and rarely permitted until relatively recently.[7]

[6]R v Pollitt [1991] 1 VR 299, 302 (Beach J) (‘Pollitt’).

[7]R v Debs and Roberts [2005] VSCA 66, [249].

This evolving position was approved by Whelan J in R v AB & Baker (Ruling No 1)[8]:

I accept that the strict approach to the separate trial of murder counts is no longer warranted. There will be circumstances where there will be no prejudice or embarrassment to the defence in another count or counts being tried with a murder count and where such a trial will be appropriate.[9]

[8][2008] VSC 106.

[9]Ibid, [10].

The cross-admissibility of evidence is an important, but not decisive, factor in determining whether unacceptable prejudice or embarrassment results from the joinder.[10] In DPP v Iliopoulos & Ors (Ruling No 1),[11] Kaye JA observed:

A central issue, in determining whether the joinder of counts in the one indictment, would result in prejudice to an accused, is whether the evidence on each of the charges is cross-admissible in respect of the other charges. That consideration has principally informed the approach of the courts on the issue of severance, under s 193 of the [CPA], and under its predecessor, s 372 of the Crimes Act.[12]

[10]R v CHS (2006) 159 A Crim R 560.

[11][2016] VSC 32 (‘Iliopoulos’).

[12]Ibid, [91].

After referring to both Sutton v The Queen[13] and De Jesus v The Queen[14] as well as R v Papamitrou,[15] in which Winneke P said that the ‘capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion’,[16] Kaye JA continued:

While the question of cross-admissibility is central to the issue of severance, nevertheless it is not decisive. If the evidence is not cross-admissible, the critical question, in each case, will be whether the admission of the evidence admissible on some of the charges joined in the indictment carries the risk of impermissible prejudice to the accused in respect of the trial of the other charges in respect of which it is not admissible.[17]

[13](1984) 152 CLR 528 (‘Sutton’).

[14](1986) 61 ALJR 1 (‘De Jesus’).

[15](2004) 7 VR 375.

[16]Ibid, [27]. His Honour cited Sutton, 542 (Brennan J); De Jesus, 5–6 (Mason and Deane JJ), 7 (Brennan J); GBF v The Queen[2010] VSCA 135, [54] (Nettle and Harper JJA, Hansen AJA).

[17]Iliopoulos, [94].

Given the importance of the issue of cross-admissibility to the issue of separate trials, it is necessary to consider the arguments with respect to the relationship and context evidence, as well as the hearsay evidence, before returning to the analysis of the discretionary decision under s 193 of the CPA.

Relationship Evidence
Prosecution submissions
Relationship evidence relevance and usage – murder charge

The prosecution argues that the relationship between the accused and deceased, as husband and wife, is relevant where there is a contest of facts as stark as murder or suicide. It is unclear whether the accused’s admission of arguing with the deceased on 23 July 2018 extends to engaging in a physical argument. It is unknown whether the mechanism by which the deceased sustained the physical injuries to her face, neck, legs and arms is in dispute.

The Crown case is entirely circumstantial and the prosecution submits that the relationship is one of the relevant circumstances. It could rationally affect the assessment of both the accused’s state of mind and the deceased’s state of mind. The prosecution further submits that none of the evidence is impermissibly prejudicial. The prosecution does not rely on the evidence as propensity evidence.

The prosecution submits that the body of relationship evidence could be used by the jury as relevant to the issue of causation in the following 24 ways:

(a) The relationship was marked by sexual violence and other controlling behaviours by the accused towards Ms Fraser;

(b) Ms Fraser had made representations to her family and friends both before and after her separation from the accused that she was in fear of him;

(c) The accused was jealous of Ms Fraser and accused her of having affairs, as well as accusing various men of having affairs with her;[18]
[18]The prosecution no longer presses this aspect of its case.

(d) Ms Fraser made representations to others that she had received communications from the accused after their separation which indicated that he was aware of her precise movements at certain times;

(e) Family Court proceedings were on foot between Ms Fraser and the accused regarding the division of assets and child custody arrangements. The children of the marriage resided with the deceased. The accused had not had access to them since September 2017;

(f) On 23 July 2018 the accused knew that there was an intervention order in place with particular conditions that he not follow Ms Fraser or keep her under surveillance, contact or communicate with her by any means, approach or remain within 20 metres of her or go to or remain within 200 metres of 19 Seagrove Way, Cowes or the boundary thereof;

(g) On 23 July 2018 the accused knew that the intervention order permitted him to communicate with Ms Fraser only through a lawyer or mediator and only go to 19 Seagrove Way for the purpose of collecting personal property and then only in the company of a police officer or person nominated by Ms Fraser;

(h) The accused knew that the police had investigated the rape allegations made against him by Ms Fraser;

(i) The accused knew he had been summoned to appear on rape charges at the Latrobe Valley Magistrates’ Court;

(j) The accused had indicated to the Latrobe Valley Magistrates’ Court that he would contest the rape charges;

(k) On 23 July 2018 the accused knew that the contested committal hearing of those rape charges was imminent, being one week hence;

(l) The accused knew that the deceased would be giving evidence at the committal hearing implicating him in the commission of the rapes;

(m) The accused knew that he had made an admission on 21 April 2018 to Mr Melvin that he had raped Ms Fraser and that evidence of that admission formed part of the rape brief;

(n) Ms Fraser would not have invited the accused to attend 19 Seagrove Way on 23 July 2018;

(o) The accused would not have had an innocent purpose in attending that address on that date;

(p) The accused must have been conducting surveillance of 19 Seagrove Way on 23 July 2018 in order to determine the moment of Ms Fraser’s departure and then secreted himself at or near the premises until her return;

(q) The accused must have secreted himself there as, if Ms Fraser had been aware of his presence, she would not have willingly driven her vehicle onto the premises;

(r) The accused must not have revealed his presence until after Ms Fraser alighted from her vehicle in the garage, as, if she had been aware of his presence, she would not have done so;

(s) On 23 July 2018 Ms Fraser would not have willingly engaged in any form of contact with the accused at 19 Seagrove Way;

(t) Ms Fraser would not have initiated any physical attack on the accused;

(u) Ms Fraser would not have inflicted injuries to her face, neck, arms and legs before suiciding; and

(v) In light of all of the above, Ms Fraser would not have taken her own life on 23 July 2018.

Relationship evidence usage – rape charges

The prosecution argues that the relationship between the accused and deceased, as husband and wife, is relevant where the issue is consent as to sexual intercourse during the marriage. It could rationally affect the assessment of both the state of mind of both the deceased and the accused. That is, it is relevant to whether the deceased consented to the sexual penetration. It is also relevant as to whether the accused was aware that the deceased was not consenting or might not be consenting or the accused was not giving any thought as to whether the deceased was not or might not be consenting (in relation to charges 1 and 2) and to whether the accused did not reasonably believe that the deceased consented to the sexual penetration (charge 3). Further, the relationship evidence is not impermissibly prejudicial. The prosecution does not rely upon the evidence as propensity evidence.

The prosecution further submits that the relationship evidence will assist the jury to evaluate the hearsay representations of the deceased. The jury will not be able to assess her live evidence and this body of evidence will meet questions that would naturally arise. In particular, the evidence could be used in the following four ways:

(a) It establishes a pattern of behaviour in which the deceased was relatively unsurprised by the conduct the subject of each charge;

(b) The deceased subsequently reported the behaviour to her parents[19] and father-in-law[20] but did not report the behaviour to the police until after the accused and deceased had separated;

(c) The acts did not occur out of the blue; and

(d) The acts did not occur in a vacuum.

[19]Representations 43 – 45 are no longer pressed by the prosecution.

[20]Representation 23, in contention.

Defence submissions

The defence submits that the admissibility of the relationship evidence requires consideration of three questions. First, whether it is relevant to a fact in issue. Second, whether the evidence satisfies any of the exceptions to the hearsay rule. Third, whether the evidence should be excluded because its prejudicial effect outweighs its probative value.[21]

Murder charge

[21]Evidence Act, s 137.

In general terms with respect to the murder charge, the defence submits that given the competing explanations for the deceased’s death, evidence which shows that the deceased was in fear of the accused at a time proximate to her death will be relevant, but particular pieces of the relationship evidence identified by the Crown must be examined closely by considering the questions identified above.

The defence concedes that the fact that the accused was facing outstanding rape charges in the Magistrates’ Court listed for a contested committal hearing on 30 July 2018 will be relevant to the conduct of the accused’s defence to the murder charge. The defence further concedes that this fact is relevant to the motive of the accused to commit murder. However, the defence submits that the details of the allegations of rape should not be led in the murder trial and do not satisfy the three identified questions.

Rape charges

With respect to the rape charges, the defence submits that if those charges were heard separately from the murder charge, the context evidence of a large number of uncharged sexual assaults over the course of the marriage would likely be relevant, subject to hearsay considerations and discretionary exclusion. However, where the murder charge and rape charges are joined on a single indictment, the defence submits that this context evidence would be impermissibly prejudicial.

Legal considerations

Evidence of ‘relationship’ or ‘context’ is admissible under the Jury Directions Act 2015 (‘JDA’) as ‘other misconduct evidence’, provided it is relevant to a fact in issue. The phrase ‘other misconduct evidence’ is defined in s 26 of the JDA to mean, relevantly:

(c) evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue; or

(d) evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed.

At common law, evidence of previous wrongdoing by an accused has been held to be admissible as indirectly relevant to show that the accused’s acts were for a guilty purpose, rather than an innocent purpose.[22] This can be led as ‘relationship’ evidence.
[22]Wilson v The Queen (1970) 123 CLR 334 (‘Wilson’).

In Wilson, the wife of the accused had been killed by the discharge of a shotgun which the accused claimed was accidental. Evidence of a troubled relationship between them and the deceased’s utterances to the accused on two occasions that she knew he wanted to kill her was admitted. Menzies J said:

Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.[23]

[23]Ibid, 344.

Not all evidence of the relationship between them was admissible, but only that from which a relevant inference could logically and reasonably be drawn.[24] In that case, as here, the evidence was to ‘assist the choice between the two explanations of the occurrence’.[25]
[24]Ibid, 339 per Barwick CJ.
[25]Ibid.

In TheQueen v Clark[26] Heydon JA, after summarising the relevant authorities and explaining the ways in which the relationship evidence could be used, stated ‘[w]here a case is entirely circumstantial, it is common for relationship to be considered as one of the circumstances’.[27] Thus evidence of prior acts of violence by the accused to the deceased, prior threats of violence by the accused, statements made by the deceased of fear of the accused and evidence of arguments and hostility beyond what might be expected in a ‘normal’ relationship have all been admitted as relevant relationship evidence.[28]
[26][2001] NSWCCA 494 (‘Clark’).
[27]Ibid, [141].
[28]Wilson; Clark;R v Lubik [2010] VSC 465 (‘Lubik’); R v Iuliano [1971] VR 412; The Queen v Anderson (2000) 1 VR 1; The Queen v Parsons (2000) 1 VR 161; R v Gojanovic (No 2) [2007] VSCA 153; Ellis v The Queen (2010) 30 VR 428; and Azizi v The Queen (2012) 224 A Crim R 325.

So much is uncontroversial. Here the defence accepts that evidence which reveals that the deceased was in fear of the accused at a time proximate to her death is relevant, but points to an issue of temporal proximity of incidents between husband and wife and the date of death of the deceased. The defence contrasted the positions of Lubik in which incidents up to about two and a half years before the death were admitted and R v Tsingopoulos[29] in which incidents between three and a half years and six years before were not.
[29][1964] VR 676.

In this regard, while temporal proximity to the offence charged remains relevant, there is a difference between a relationship that was characterised by ongoing violence and one where there had been sporadic incidents or periods of violence. This distinction was borne out in the observations of Bongiorno JA in Azizi v The Queen, when considering representations of domestic violence made approximately eight years before the deceased’s death:

Although parts of [the witness’] evidence might have been able to be used as being indicative of the relationship between the applicant and the deceased had they related to a time proximate to the deceased’s death, in the circumstances, their admissibility on any basis was not established. Further, in view of the fact that those representations were said to have been made so much earlier than the deceased’s death and that there was no admissible evidence as to the relationship between that time and the period immediately prior to her death, the danger that the jury would speculate that the relationship between the deceased and the applicant had been continuously violent outweighed whatever relevance conduct many years before the death of the deceased may have had, thus requiring the exclusion of this evidence pursuant to s 137 or, possibly, s 135 of the Act.[30]

[30]Azizi v The Queen [2012] VSCA 205, [39]; (2012) 224 A Crim R 325 (‘Azizi’) (emphasis added) (Buchanan JA and Hollingworth AJA agreeing).

The individual incidents which shed light on the relationship in this case are not so temporally disjointed. Rather they form a ‘string’ of incidents occurring over many years. The last episode in that string is not at all remote from the offending alleged in count 4 and there is no lengthy delay between the episodes that form that string. And the continuous string began prior to 2014 and stretched to 2018. In other words, all the episodes in the string are temporally connected. Consideration of the whole of the string, subject to discretionary exclusion, gives a more realistic understanding of the nature of the relationship between the accused and deceased than an arbitrary date deemed to be too remote in time.

Evidence of relationship or context may be relevant to some charges and not others on an indictment.[31] I will later return to this issue when considering issues of the complexity of the trial.
[31]R v McNamara (2002) 131 A Crim R 140.

Analysis

The prosecution has noted that although the JDA defines relationship evidence and context evidence as two forms of misconduct, the context evidence in this case is largely comprised by the relationship evidence. As summarised above, the prosecution has characterised the evidence and explained the manner in which its relevance is argued.[32]
[32]HML & Ors v R (2008) 235 CLR 334 (‘HML’) per Hayne J; Gipp v R (1998) 194 CLR 106; Tully v R (2006) 230 CLR 234.

As a general proposition, and as accepted by the parties, evidence of the relationship between the deceased and accused is relevant to both the charge of murder and the three counts of rape.

Whether any particular item of relationship evidence is relevant and not impermissibly prejudicial will be addressed below after considering the issue of hearsay.

Hearsay Evidence

Ms Fraser is an unavailable witness as she is deceased.[33]
[33]Evidence Act, clause 4(1)(a), Part 2, Dictionary.

The previous representations of an unavailable witness may be admissible as exceptions to the hearsay rule.[34]
[34]Evidence Act, ss 65 and 66A.

The prosecution has given notice pursuant to s 67 of the Act that it seeks to lead previous representations made by the deceased, contained in 28 different documents. The total hearsay representations in contention number 60 and are considered individually below.

It is to be noted that the prosecution also submits that some statements of the deceased are relevant as original evidence and not relied upon as going to the truth of the asserted fact.

Statutory considerations

Evidence that is relevant is admissible in a proceeding.[35] Irrelevant evidence is not.[36] Section 55(1) of the Act defines relevant evidence to be evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. Evidence will not be irrelevant only because it relates to the credibility of a witness, the admissibility of other evidence or a failure to adduce evidence.[37]
[35]Evidence Act, s 56(1).
[36]Evidence Act, s 56(2).
[37]Evidence Act, s 55(2).

Hearsay evidence, even if relevant, is not admissible unless it falls within an exception to the exclusionary rule stipulated in s 59(1) of the Act:

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

In this matter the prosecution relies upon the exceptions in s 65(2)(b) and (c) as well as s 66A of the Act.

Relevantly, section 65 is in the following terms:

(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—
…
(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; …

To fall within the exception in s 65(2)(b) the representation must have been made ‘when or shortly after’ the asserted fact occurred and ‘in circumstances that it make it unlikely that the representation is a fabrication’.

Whilst this double limbed test requires assessment of the temporal connection between the occurrence of the asserted fact and the making of the representation,[38] the central concern of the provision is the unlikelihood of fabrication. In Williams v The Queen, the Full Court of the Federal Court observed:

[I]t 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 (‘shortly after’) the occurrence of the asserted fact.[39]

[38]Azizi, [47].

[39]Williams v The Queen (2000) 119 A Crim R 490, [48].

The concept of ‘fabrication’ centres on deliberate concoction.[40]
[40]Conway v The Queen (2000) 98 FCR 204 (‘Conway’), [47].

The phrase ‘in circumstances that’ focusses attention upon the circumstances of the making of the representation to determine the likelihood of its credibility and reliability. But that is not the sole consideration. As Mason P observed in R v Ambrosoli:

[E]vidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby.[41]

[41]R v Ambrosoli (2002) 55 NSWLR 603, [29] (‘Ambrosoli’) (Mason P, with whom Hulme and Simpson JJ agreed).

This extends to consideration of what the maker of the previous representation said on other occasions.[42] As the High Court has said:

The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted.
When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation. But it is unnecessary to gloss further the statutory language …[43]

[42]Conway, [145].

[43]Sio v The Queen (2016) 90 ALJR 963 (‘Sio’), [70]-[71] (citations omitted).

To fall within the s 65(2)(c) exception, the representation must have been made ‘in circumstances that make it highly probable that the representation is reliable’.

In contradistinction to s 65(2)(b), the provision is absent a temporal requirement. And, it imposes a different and significantly lower threshold of highly probable reliability.[44] That said, the need for it to be ‘highly’ probable that the representation is reliable is nonetheless an onerous one.[45] Further, reliability is not limited to considerations of truthfulness.[46]
[44]Conway, [142].
[45]Azizi, [49].
[46]Munro v The Queen [2014] ACTCA 11, [7].

Section 66A of the Act is in the following terms:

The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.

The state of mind, feelings or intentions the subject of the representation must be relevant to a fact in issue and the representation must be ‘contemporaneous’ with that state of mind or feelings or intentions.

Hearsay Notices

I turn now to look at each of the hearsay representations sought to be admitted by the Crown and analyse the issues raised in relation to them. Although I will address each representation individually,[47] I will use the groupings adopted by the parties in argument before the court to avoid, as far as possible, repetition of similar arguments.
[47]Sio, [32].

These groupings are six-fold: sexual assault; physical abuse; intimidation, aggression and fear; controlling and abusive behaviour; fears and predictions of death; and general matters concerning the relationship. Representations no longer pressed by the prosecution or conceded as admissible by the defence are not here addressed.[48] I also adopt the numbering system which differentiates the three Notices. Representations from Hearsay Notice 1 have an ordinary numerical value. Representations from Hearsay Notice 2 have a numerical value preceded by the letters SC. Representations from Hearsay Notice 3 have a numerical value preceded by ‘3.’.
[48]These are noted in the annexures to this Ruling. The matters conceded by the defence remain relevant to the issue of the architecture of the trial when issues of ‘global’ prejudice and manageability are addressed.

I will first address the hearsay issue with respect to each representation. Then, I will address the issues of admissibility vis-à-vis probative value and prejudicial effect under s 137 of the Act. With respect to the first three groupings, the latter is done with respect to the whole group. Thereafter, that exercise is undertaken with respect to sub-groups of representations or individual representations.

Representations comprising complaints of sexual assault – hearsay issues
Representations 3, 4, 5, 40, 41 and 42– allegations of rape in police statements

Representations 3, 4, and 5 were made by the deceased in her first police statement sworn at 9.00am on 3 July 2017.[49] Representations 40, 41 and 42 were made by the deceased in the second police statement sworn by her on 12.42pm on 3 July 2017.
[49]This is the typewritten date of Detective Senior Constable Simon Fisher’s signature on the jurat. The signature of Ms Fraser is accompanied by a handwritten date of ‘03/06/2017’.

Representation 3 is the deceased’s statement that she woke up numerous times during her relationship with the accused to find him having sex with her after she had clearly stated ‘no’ before falling asleep.

Representation 4, being the subject of count 1, is the deceased’s statement that one example of non-consenting sex was when the accused locked her in the pantry to keep their children out when she returned home from work, being something he acknowledged during a counselling session with Terence Melvin.

Representation 5 is the deceased’s statement that on a handful of occasions between 2013 and 2016 the accused started having sex with her while she was asleep beside one of their children.

Representation 40, being the subject of count 1, is the deceased’s statement that on an occasion in 2014 the accused had non-consensual sex with her in the pantry. The accused locked the door of the pantry from the inside and undid her jeans. She protested but the accused pulled down her underwear and put his penis in her vagina. He had sex with her for a minute or two before ejaculating inside her vagina. The accused then unlocked the pantry and left.

Representation 41, being the subject of count 2, is the deceased’s statement that on an occasion in 2014, the accused had non-consensual sex with her whilst she was asleep and their three year old son, R, was in the same bed. The deceased woke up to the accused thrusting his penis into her vagina. She stated that she had woken up to the accused doing this and that it had started when she was asleep. The deceased stated that she pushed back into the accused to avoid R realising what was happening. The accused ejaculated then rolled over and fell asleep. The deceased got out of bed and took R back to his bed.

Representation 42, being the subject of count 3, is the deceased’s statement that the last time the accused raped her was in September or October 2016 when the accused had non-consensual sex with her whilst she was asleep. The deceased and accused went to bed together. The deceased fell asleep fully clothed and later woke up to the feeling of coldness. She realised that the accused had pulled down her pants whilst she was asleep, poured lubricant onto his penis and then put his penis into her vagina. She froze for a moment before pushing herself off the accused and getting out of bed. She told the accused ‘you can’t do that. I was asleep, that is rape’ then went and slept in one of their children’s rooms.

Prosecution submissions

In its written submissions, the prosecution relies upon s 65(2)(c) of the Act and points to five factors that demonstrate that the representations in the police statements were made in circumstances which make it highly probable that they are reliable. Indeed the prosecutions submits that the circumstances are such that it is unlikely that they were fabrications.

First, the representations were made in police statements, signed and acknowledged by the deceased to be true and correct in the belief that if she were to make a false statement she would be liable to the penalties of perjury. Second, factors that precluded a positive finding of a high probability of reliability of a representation in a police statement in R vAmbrosoli[50] are not apparent. Third, there is no evidence that the deceased was impaired at the time she made or signed her statements. Fourth, there is no evidence that the deceased later recanted the representations. Fifth, many of the representations were consistent with representations made by the deceased previously (and subsequently).
[50](2002) 55 NSWLR 603, [39]. There the deponent of a witness statement said under cross-examination at committal that the statement had been typed out ‘a little incorrect’, he ‘presumed’ the police officer would type out the statement the way he had said, he had ‘pretty much’ never read it before signing it, part of the statement dealing with a material point was not accurate, the statement contained a number of matters that were probably inaccurate and a considerable number of things that were wrong.

As to the last point, representations 3, 5 and 41 are said to be consistent with representations 112, 114, 127, SC5 and SC17. Representation 42 is said to be consistent with representations 112, 114, 127 and SC17. Representations 4 and 40 are said to be consistent with representation 49 and also with the admission the accused made to Terence Melvin on 21 April 2017 in the presence of the deceased.

In oral argument the Crown submitted that the circumstances in which the statements were made were not, as the defence submit, suggestive of an opportunity to lie. The circumstances considered in Sio and DPP v Madina[51] are distinguishable, as both involved questions as to the truthfulness and reliability of police statements made by an accomplice with a criminal history.
[51][2019] VSCA 73.

The Crown emphasised the many, consistent representations made by the deceased and further submitted that there were many representations made by the deceased as to the accused’s ‘negative behaviour and conduct’ prior to separation. Representations 91, 88 and 122 are representations about controlling behaviour in 2016 and 2017. And, the negative behaviour of the accused was witnessed by others, such as Terence Melvin, who states that the accused ‘dominated’ the counselling sessions he had with the accused and deceased in 2017. In short, the submission was that this was not a situation in which the relationship between the accused and deceased had appeared normal prior to separation and only afterwards did the deceased make complaints about sexual assault by the accused.

The prosecution said that the evidence considered in its entirety shows that the deceased had been in fear of the accused for a considerable period, and the duration of the fear as well as its intensity were probative.

Defence submissions

In the original written submissions, the defence submits that allegations of rape between 2012 and October 2016 are not probative of the relationship between the accused and deceased in July 2018 and are therefore irrelevant to the charge of murder.

The defence submits in the alternative that if relevant, then the probative value of these representations is outweighed by their prejudice to the accused on the charge of murder. The probative value is said to be low given the lapse of time. The prejudice is said to be high because jurors are likely to be sufficiently appalled by the rape allegations that there is a real risk that their judgment as to the murder charge will be clouded by feelings of antipathy towards the accused. The accused is further prejudiced by his inability to cross-examine,[52] although it is conceded that this factor carries less weight where it is alleged that the accused himself is responsible for the deceased’s unavailability.
[52]DPP v Curran; Curran v The Queen [2012] VSCA 224, [54]-[55].

The ultimate position of the defence was that the fact of the allegation of the rapes and the imminent committal hearing is relevant to the charge of murder, but that the substance of those allegations is not.

The defence further argued that the Sio test, namely that the police statements were not made in ‘circumstances that of themselves tend to negative motive and opportunity for the declarant to lie’[53] should be applied. And, if it was, none of the representations made by the deceased to police would satisfy it.
[53]Sio, [64].

In this regard, the defence pointed to the fact that the police statements are not contemporaneous statements, but were made years after the conduct alleged. That affects their reliability. And, the fact that a representation is made in a sworn police statement does not, of itself, lead to the conclusion that it is highly probable that it is reliable. The defence also points to the chronology of separation and intervention order proceedings and Family Court proceedings between the accused and deceased which illustrate an ongoing acrimony, which forms part of the ‘circumstances’ in which the representations were made. Further, there is nothing in the police statements that is against the interests of the deceased which, if present, might bolster their reliability.

While the defence concedes that ‘circumstances’ in the Act may include consideration of other statements and representations made by the deceased which are either consistent or inconsistent with the representation in question, that is only one part of the inquiry and the focus must remain on the representation itself and not on the general question of the overall reliability of the maker of it.[54] In particular, subsequent consistent statements are not likely to add anything to the reliability of a representation. In this case neither are statements made to professionals in the context of seeking legal advice post separation.
[54]Sio, [61]; Madina, [49],[70].

In oral submissions the defence elaborated on the chronology of interactions between the accused and deceased following their separation in April 2017. Initially the deceased left the family home and resided with her parents a short distance away. During that time she contacted a lawyer and made contact with police to discuss intervention order proceedings. The initial complaint as to the sexual assault allegations was made in April 2017. Following some initial resistance, the accused moved away from the family home and children. From 19 May 2017 an interim intervention order precluded the accused from attending at the family home. The accused did not agree to the making of a final intervention order and the matter was adjourned to 20 October 2017. While the timing of the separate Family Court proceedings is not clear, they were on the cards prior to the making of the police statements on 3 July 2017.

It was submitted that the police statements were therefore made in circumstances which raise the issue that the deceased may have had reason to advance her own interests in both Magistrates’ Court and Family Court proceedings. It was submitted that the risk of exaggeration or falsification is a matter relevant to the ‘circumstances’ in which the representations were made, particularly in the absence of anything else suggestive of veracity or reliability.

In this regard the defence submitted that if the prior representations about the controlling behaviour of the accused were admitted (although it was not conceded that they should be), they would provide some support for the reliability of the representations in question, but only in a limited way.

The defence elaborated the prejudice argument, submitting that the fact that the deceased was in fear of the accused, that he was facing rape charges and that those charges were listed for contested committal proceedings within a week of 23 July 2018 is relevant and admissible, but that the detail of the rape allegations should not be admissible with respect to the murder charge. While relevant to the level of fear held by the deceased, it is simply too emotively prejudicial to the accused, particularly as there is other evidence as to the level of fear that the deceased held.

Finally the defence argued that with respect to representations 3 and 5, the accused suffers additional prejudice from the reference to the behaviour said to have occurred on multiple occasions.

Analysis

In Sio, the admissibility issue concerned s 65(2)(d) of the Act, whereas the prosecution relies upon s 65(2)(c) with respect to these six representations. The focus of s 65(2)(d) is upon circumstances which make it likely that a previous representation, which was against the interests of the person who made it at the time it was made, is reliable. Section 65(2)(c) is not specifically concerned with previous representations against interest, but rather with the circumstances in which a previous representation was made that make it highly probable that the representation is reliable. It is of little moment to the issue of reliability that a complainant’s police statement, unlike that of an accomplice, is absent any statement against interest.

Nonetheless the approach mandated by the High Court in Sio directs attention to the identification of objective circumstances in which each individual representation was made and the assessment of whether it is highly probable that the representation is reliable notwithstanding the hearsay character of the evidence.

The objective circumstances in which each of these six representations were made are the same. The following chronology is drawn from the depositions and material under various s 188 CPA Notices.

The deceased and accused first separated (briefly or as a ‘trial’) in January 2017.

On 19 January 2017 the accused was referred by his general practitioner to Terence Melvin, a psychologist, with respect to resulting anxiety. His first appointment was 23 February 2017. Unexpectedly to Mr Melvin, the accused attended with the deceased. Couples counselling was agreed. Mr Melvin saw each of the accused and deceased alone before seeing them together. On 9 March 2017 the deceased told Mr Melvin that she was fearful of leaving the relationship[55] and of the accused’s domination and control of her,[56] but they did not speak about sexual issues.
[55]Representations 122 and 125, conceded by the defence under s 66A of the Act (but not otherwise).
[56]Representation 123, contested by the defence.

Three joint sessions with Mr Melvin then took place, the last on 5 April 2017. A further medical referral was then necessary for the therapy to continue.

In the meantime, on 27 January 2017 the deceased had contacted Bass Coast Health Counselling and Social Work service to request family violence counselling.[57] She spoke briefly and without detail on the telephone to Sharon Churchill, a social worker with the service. An appointment was made for face to face counselling on 9 February 2017.
[57]Representation SC1, conceded by the defence under s 65(2)(c).

At that appointment the deceased told Ms Churchill that there were several occasions during the marriage when she woke up to the accused having sex with her.[58] Ms Churchill discussed the availability of the Sexual Assault Counselling Service (with Nicole Stanes) with the deceased. The deceased said that she was feeling safe and supported and so elected not to make a follow up appointment. She also said that the accused’s father was acting as a mediator in relation to the finances and children.[59]
[58]Representation SC 5, conceded by the defence vis-à-vis charges 2 and 3 (but not otherwise).
[59]Representation SC8, conceded by the defence.

In March 2017 during a consultation with Brigitte Linder, a Chinese medicine practitioner, the deceased used Ms Linder’s phone to telephone Nicole Stanes, at the suggestion of Ms Linder after the deceased stated that she was worried that the accused was monitoring her telephone use.[60]
[60]Representation 101, conceded by the defence.

On 18 April 2017 the deceased telephoned Sharon Churchill requesting a joint appointment with Nicole Stanes, stating that she and the accused were still separated, but he refused to leave the family home.[61] The deceased also stated that she was staying with her parents and seeing the children only when she was taking them to and from school. She said that she did not believe the children were at risk of harm from the accused.[62] Ms Churchill urged the deceased to engage with further supports and again provided contacts for two legal services, Relationships Australia and SalvoCare’s Family Violence Outreach Program.
[61]Representation SC10, conceded by the defence.
[62]Representation SC11, conceded by the defence.

On 16 April 2017, being Easter Sunday, the deceased moved to her parents’ house.

On 19 April 2017, [63] while the further medical referral to Terence Melvin was pending, the deceased telephoned him. She stated that she had decided to separate and that the accused had difficulty accepting the decision. She further said that she was frightened and believed that the accused would become vindictive.[64] The deceased also first told Mr Melvin about rape in the marriage. She described a number of situations when the accused would demand sex even though she didn’t want it and also described him waking her in the middle of the night and forcing her to have sex.[65]
[63]The statement of Melvin incorrectly records this date as 19 April 2018.
[64]Representation 126, conceded by the defence under s 66A of the Act (except for the belief as to vindictiveness).
[65]Representation 127, contested by the defence.

The accused was due to have a solo session with Mr Melvin on 21 April 2018, but he attended with the deceased. During the consultation the deceased described an incident that took place in the family home in Phillip Island in which the accused pushed her into a cupboard and forced her to have sex with him.[66] The deceased did not give a date. Mr Melvin states that he then asked the accused if he had done that and the accused said ‘yes’. Mr Melvin states that he then asked the accused if he realised that it amounted to sexual assault or rape (he is unsure of his exact words). Mr Melvin does not state what the accused’s response was and his contemporaneous notes of the session do not record any response to the issue at all.[67] He says that he told the accused that his behaviour was unacceptable. The accused then sought to justify his behaviour by stating that it was the fault of the deceased for not communicating clearly. The deceased then became upset, appeared to panic and left the room after saying ‘this is what you always do’.
[66]Representation 128, contested by the defence.
[67]Committal transcript, depositions, 1804-1806.

On 25 April 2017 the deceased telephoned Mr Melvin to describe a recent incident in which she suspected the accused had started a fire at the rear of the family home. She stated that she was anxious and terrified of the accused.[68] Mr Melvin states that they discussed whether an intervention order was appropriate in the circumstances.
[68]Representation 129, conceded by the defence under s 66A of the Act.

On 28 April 2017 the deceased contacted the San Remo Police Station by telephone and spoke with Senior Constable Andy Lone to report historical sexual assaults and also discuss obtaining an intervention order against the accused.[69] Lone then contacted Detective Senior Constable Simon Fisher at Morwell SOCIT. Later that morning Fisher told Lone that the matter would be investigated and he should contact the deceased regarding the intervention order. Lone was unable to do the latter immediately and so asked Sergeant Robyn Heal to do so. Heal had an extensive telephone conversation with the deceased during which the deceased said that the accused had committed family violence on her.[70] The deceased also said that she had made extensive notes, which she later emailed to Heal.[71] Heal then briefed Lone, who used the information as relayed to compile an application for a complaint and warrant for an intervention order.
[69]Representation 131, conceded by the defence.
[70]This is representation 132 and is conceded by the defence.
[71]This ‘relationship document’ appears in several versions, some obviously post-dating 28 April 2017. The first nine pages (depositions 799 to 807 inclusive) appears to be the first version emailed to Heal. The prosecution no longer press any representations contained in the various versions of this document.

The complaint includes that the deceased ‘has also reported some historical assaults that are being investigated by Morwell SOCIT’. It also included allegations of aggression and domination by the accused and the deceased’s fear of vindictiveness by him as well as the deceased’s belief that the accused caused the fire to the rear fence of the family home.

The application for the intervention order was served on the accused on 5 May 2017 while he was in Western Australia. He was bailed to attend the Wonthaggi Magistrates’ Court on 19 May 2017.

On 10 May 2017 the deceased attended an appointment with both Sharon Churchill and Nicole Stanes. She stated that she and the children were back in the family home, the accused had agreed to separation and she had sought legal advice and self-referred to the SalvoCare’s Family Violence Case Management Service, where she was on the waitlist.[72] The deceased said that she had applied for an intervention order. She said that the accused had continued to harass her via text and phone calls using words such as ‘you never know when someone will break into your house and do you harm’.[73] The deceased also said there were instances of her waking up to the accused having sex with her.[74] The deceased also provided a ‘written narrative of events’, which was placed on file.
[72]Representation SC12, conceded by the defence.
[73]Representation SC14, conceded by the defence.
[74]Representations 112 and SC17, contested by the defence.

On 12 May 2017 the deceased told Kristii Slatter, her case worker at SalvoCare Eastern, that she had concerns that the accused was watching her.[75] Ms Slatter made a ‘safer in the home’ referral for the deceased and requested a full audit of her home including spyware and technology. The deceased also provided Ms Slatter with her ‘relationship document’.
[75]Representation 135, conceded by the defence.

On 19 May 2017 an interim order was made in favour of the deceased and children. The accused did not agree to the order. The matter was adjourned to 16 June 2017.

On 20 May 2017 the deceased telephoned Sharon Churchill to inform her that the interim order had been made.

On 23 May 2017 the deceased had a telephone conversation with Kristii Slatter and stated that she believed the accused had been going through the phone numbers in her phone and calling each person she had been calling before stating he had the wrong number and hanging up.[76]
[76]Representation 140, conceded by the defence.

On 15 June 2017 the deceased attended a counselling session with Sharon Churchill, who advised her to discuss any breaches of the intervention order with Leading Senior Constable Ann Barnes, a VicPol Family Violence Liaison Officer.

On 16 June 2017 a further interim order was made. Again the accused did not agree to the order. The next return date was 20 October 2017, but on 4 August 2017 Lone applied for a variation of the interim order to prevent the accused from going to or remaining on Phillip Island. That variation was granted. The accused did not agree to the variation. The matter was adjourned to 29 August 2017, on which date it seems (from the face of the document) that the condition preventing the accused from attending Phillip Island was rescinded. The matter was further adjourned to 20 October 2017 for a contested hearing.

On 28 June the deceased had a telephone conversation with Kristii Slatter in which she said that she had had sensor lights installed at her house and had had her garage door remote control re-coded.[77]
[77]Representation 143, conceded by the defence pursuant to s 66A of the Act, but not otherwise.

Court records show that a hearing (of some sort) proceeded on 20 October with respect to the intervention order, but the outcome is unclear. On 12 January 2018 a final order was made in the presence of the accused by consent and without admission of the allegations in the complaint. Court records show that the matter was again before the Magistrates’ Court on 18 May 2018, but again the nature and outcome of that hearing is unclear.

At an unknown time, but logically before 3 July 2017 (and, based on the statement, the date of separation between the accused and deceased), the deceased told Alice Bradley that the accused had raped her and she was going to bring charges against him.[78] Ms Bradley was the practice manager at the Cowes Medical Centre where the deceased worked.
[78]Representation 92, contested by the defence.

The police statements were sworn by the deceased on 3 July 2017. They are clearly based on the ‘relationship document’, with portions of it appearing word for word in them. That document, or something very similar, had already been given by the deceased to Sharon Churchill, Nicole Stanes and Kristii Slatter, who were providing counselling and support services – but not legal advice – to the deceased during the period in which she separated from the accused.

I am affirmatively satisfied that each of the representations in the police statements were made in circumstances that make it highly probable that they are reliable.

There is no basis for hypothesising that the statements are inaccurately recorded or that the deceased was unaware of their content. The representations are precise. The three acts subject of the charges are clear. The only difference between representations 4 and 40, which both pertain to count 1, is that the latter (in the second statement) details the act of penetration absent from the first. Representation 41, being count 2, is identified clearly by reference to the child R. Representation 42, being count 3, is identified clearly by reference to it being the last time a rape occurred. Representations 3 and 5 refer to ‘numerous times’ or a ‘handful of occasions’ during the marriage in which an incident like count 3 or count 2, respectively, occurred. There are no other vague assertions of ‘abuse’ relied upon.

Further, as illustrated by the brief chronology above, there is a marked consistency in representations of the deceased in the months from January 2017 prior to making the sworn statements on 3 July. All of the representations are either of count 1 or count 2, or of unspecified incidents similar to counts 2 and 3. It is to be noted that the deceased told Sharon Churchill (on 9 February 2017) that the behaviour alleged with respect to counts 2 and 3 had happened on several occasions at the time as she was still willing to pursue couples counselling with the accused and Terence Melvin. And, there is the evidence of Terence Melvin that the accused admitted the occurrence of count 1.

Representations 21, 22, 23, 24, 25, 3.2 – police statement

These representations were all made in the deceased’s police statement dated 3 July 2017.

Representation 21 is that in 2015 and 2016 the deceased made several attempts to end her relationship with the accused and to discuss separation.

Representation 22 is that in November 2016 the deceased spoke to the accused about the damage rape was doing to their marriage.

Representation 23 is that in January 2017 the deceased spoke to the accused and James Basham about the separation, including discussion of domination, aggression, controlling behaviours and rape.

Representation 24 is that in January 2017 the deceased discussed issues of rape within her marriage with Janine Fraser, Trevor Fraser and James Basham.

Representation 25 is that although she had said that it might not be appropriate, she reconciled briefly with the accused at his request around the time of their tenth wedding anniversary.

Representation 3.2 is that in about March to April 2017 the deceased tried to discuss with the accused that in the event that they separated whether she and the children could remain in the house. The accused responded that if he couldn’t be in the house she didn’t deserve it and it was only fair that she suffered too.

Prosecution submissions

The prosecution relies upon ss 65(2)(b) and 65(2)(c) of the Act with respect to all five representations. The prosecution also relies upon s 66A with respect to representations 22 and 24.

In respect of representations 21, 23 and 25, the prosecution relies on four indicia of the circumstances in which the representations were made that make it both unlikely that the representations are a fabrication, satisfying s 65(2)(b) of the Act, and which make it highly probable that the representations are reliable, satisfying s 65(2)(c) of the Act.

First, that the deceased made this representation in her police statement, which she signed and acknowledged as being true and correct. Second, that the Ambrosoli factors that may preclude a positive finding of high probability are not apparent. Third, that there is no indication that the deceased was impaired at the time she made or signed the statements. And fourth, that there is no evidence that the deceased later recanted these representations.

The prosecution further submits that the representations are relevant to the nature of the relationship between the deceased and the accused.

In respect of representations 22 and 24, the prosecution relies on five indicia of the circumstances in which the representations were made that make it both unlikely that the representations are a fabrication, satisfying s 65(2)(b) of the Act, and which make it highly probable that the representations are reliable, satisfying s 65(2)(c) of the Act.

The first four indicia relied upon are identified at paragraph 494 above. Fifth, the prosecution relies on the evidence of the deceased’s parents, which is consistent with these two representations.

The prosecution additionally rely on s 66A of the Act, in that the representations are contemporaneous statements about the deceased’s statement of mind, namely that rape was damaging/an issue in her marriage with the accused.

The prosecution also say these representations are relevant to the nature of the relationship between the deceased and accused, and are relevant as to the occurrence or otherwise of charges 1 – 3.

In respect of representation 3.2, the prosecution relies upon s 65(2)(c) of the Act and points to four indicia of the circumstances in which these representations were made that make it highly probable that they are reliable.

First, that the representation was made in a sworn police statement. Second, that the Ambrosoli factors are not present. Third, that there is no evidence that the deceased was impaired at the time she made the representation. Fourth, there is no evidence that the deceased later recanted the representation.

The prosecution submits that the representations are relevant to the nature of the relationship between the accused and deceased, enabling a realistic appraisal of their mutual dealings relevant to all counts on the indictment. The representations are also part of the factual narrative.

Defence submissions

The defence concedes the admissibility of representations 21 to 25 inclusive, but notes that with respect to representations 22 and 24, their admissibility depends in part on the cross-admissibility of the charges on the indictment.

With respect to representation 3.2 the defence relies upon its submissions with respect to the circumstances in which the first police statement of 3 July 2017 was made by the deceased.

Analysis

As I have found the charges on the indictment to be cross admissible, representations 21 to 25 inclusive will be admitted.

For the reasons previously articulated with respect to the sworn police statements of the deceased, I am satisfied that representation 3.2 was made in circumstances that make it highly probable that the representation is reliable.

In my view evidence of the accused’s belief or statement that the deceased should suffer in the event of separation is probative of count 4. The representation will be admitted.

Representation 70 – Rebecca McFarlane

Representation 70 occurred in November 2015. The deceased told Rebecca McFarlane that she was planning to separate from the accused.

Prosecution submissions

The prosecution relies upon s 66A of the Act, the representation being a contemporaneous statement about the deceased’s state of mind.

The prosecution submitted that these representations are relevant to the relationship between the deceased and accused, enabling a realistic appraisal of their mutual dealings.

Defence submissions

The defence concedes that this representation is admissible in relation to charge 3 but, due to temporal remoteness, is not admissible with respect to charge 4.

Analysis

In my view the representation is admissible pursuant to s 66A in respect of all charges. The history of the separation and reconciliation and ultimate separation between the deceased and the accused is relevant to the issues in the rape charges as well as the murder charge. The representation will be admitted with respect to all charges.

Severance Revisited

The defence application for separate trials is refused.

The accused is not prejudiced by the joinder of the counts. For the reasons articulated above, the evidence with respect to all counts is cross-admissible.

Further, the joint trial of all counts does not otherwise preclude a fair trial for the accused. In this respect I note the following.

The indictment comprises only four counts in total. That will not overwhelm an attentive jury.[95] The allegations in the four counts are clear and distinct. At the same time, their inter-relatedness is obvious. That connection extends beyond the common victim. The Crown case is that the imminent hearing of the committal with respect to the rape charges provided (part of the) motive for the murder. The jury may well reason, if it accepts the prosecution argument as to motive, that the allegations of rape are more likely to be truthful and accurate.
[95]R v Smart [1983] 1 VR 265 at 283, 289; R v Reid [1999] VSCA 98, [115-116], [167-169] (per Winneke P, Buchanan and Chernov JJA); R v Walker [2004] VSC 411, [16] (per Teague J, citing R v Renzella (unreported, 7 August 1997, Victorian Court of Appeal)).

The differing elements as between charges 1 and 2 on the one hand, and charge 3 on the other would not, if those three counts were heard alone be sufficient reason to sever them. It is to be remembered that the issue with respect to all counts is whether the incidents of non-consensual sex occurred at all. The accused denies ever engaging in non-consensual sex. It is not to be expected that there will be differential arguments as between an element which requires the prosecution to prove that the accused was aware that the deceased was not consenting or might not be consenting in respect of counts 1 and 2 and an element which requires the prosecution to prove that the accused did not reasonably believe that the deceased consented to the sexual penetration with respect to count 3. This is particularly so given the evidence relating to count 1 is that the deceased had said that the accused would ‘have to wait’ for sex, but penetrated her nonetheless and the evidence relating to both counts 2 and 3 is that the deceased was asleep at the time when the penetration commenced.

That being so, there is no logical reason why the different elements of counts 1 and 2 on the one hand and count 3 on the other are any more complex because the jury will also be required to consider the elements of murder. Nor that the jury will find the elements of murder difficult to understand because of these differences in the rape counts.

Further, the use of the evidence of the sexual misconduct other than the charged acts is clear and confined, comprising just 13 representations. (I recall that the entirety of the evidence of sexual misconduct other than the alleged admission to Terence Melvin, both charged and uncharged totals 20 representations to be given by eight witnesses.)

It can be used by the jury in considering the charged acts of rape in the manner already identified. It can also be used, along with the evidence of the charged rapes, as part of the evidence of the relationship between the accused and deceased at the time of the deceased’s death. That evidence is clearly relevant to the motive alleged by the prosecution. It is also relevant to the longevity and intensity of the fear of the accused by the deceased. Therefore it is highly relevant to the factual issue of how and why the accused came to be in the garage of 19 Seagrove Way on 23 July 2018. And, it is a sub group of the general relationship evidence. Its detail is not of such a kind as to overwhelm the reason of the jury. The uncharged aspects of it are not detailed, other than to describe behaviour of a kind similar to the charged aspects.

The relationship evidence of non-sexual misconduct is also clear and confined, comprising 63 representations to be given by 18 witnesses.[96] The overwhelming majority of that evidence relates to the period immediately before the accused and deceased separated and thereafter to the date of her death. Its topics are readily identifiable. First, the deceased’s attempts to separate and the accused’s reaction.[97] Second, allegations of controlling behaviour by the accused, such as monitoring the movements[98] and electronics[99] of the deceased, belittling of or being aggressive to the deceased[100] and superintending domestic chores,[101] and the deceased’s reaction to that behaviour.[102] Third, threats made by the accused to the deceased.[103] Fourth, expressions of fear of the accused by the deceased.[104] Fifth, statements by the deceased to her new partner.[105]
[96]Four of whom also give evidence of sexual misconduct.
[97]Representations 21, 25, 26, 36, 70, 84, 99, 122 (and duplicate thereof 125), 126, 130, 132, SC1, SC2, SC8, SC10, SC11, SC12, SC14, 3.1, and 3.2.
[98]Representations 11, 12, 14, 29, 66 and 135.
[99]Representations 39, 95, 96, 101, 140, 167 and SC4.
[100]Representations 27, 31, 32, 38, SC36.
[101]Representations 30, 33 and 34.
[102]Representations 143, 144 and SC25.
[103]Representations 35 and SC14.
[104]Representations 54, 63, 74, 83, 90, 91, 129, 146, 169, SC31, SC35, SC36 and SC38.
[105]Representations 3.1, 3.4 and 3.5.

That the evidence may be so readily categorised and framed for the jury indicates that it will not add undue complexity to the trial. It follows that the number of representations is not an indicator that the trial will be unwieldy or swamped by such evidence. Further, the distinction between the statements of the deceased’s feelings and state of mind and the representation of asserted fact is evident on the face of the representations.

In considering the architecture of the trial as a whole, any ‘global’ prejudice to the accused and the ability of the jury to understand differential admissibility of the relationship evidence, the evidence of other non-sexual misconduct will, but for seven exceptions, be admissible in relation to count 4 only. That is because most of that evidence relates to the relationship between the accused and deceased specifically around the time of separation and thereafter. The seven exceptions are as follows. Representations 11 and 12, both of which describe ongoing controlling behaviours of the accused and were dated by the deceased to be relevant to 2014/2015. Representation 21, which concerns the attempts made by the deceased to discuss and end her relationship with the accused in 2015 and 2016. Representation 54, which concerns earlier expressions of fear of the accused by the deceased. Representation 70, which is a statement that the deceased was planning to separate from the accused in November 2015. Representation 74, which is a 2015 expression of fear by the deceased, both of the accused and of the future in the event of separation. Representation 132, which was a statement that the accused had committed family violence on the deceased.

The behaviour of monitoring the movement of the deceased, not allowing her to enjoy time with others uninterrupted, behaving in a possessive and sexually inappropriate manner when they were in company together as well as expressions of fear from 2015 onwards can clearly be used by the jury with respect to the issues in the rape charges as well as with respect to the murder charge. That the deceased wished to end her marriage in 2015 and 2016 is clearly relevant to the alleged occurrence of rape in 2014 to 2016 as well as to the events surrounding the eventual separation in 2017, as is the assertion of family violence throughout the marriage.

Thus, in my view, the architecture of the trial will not be unduly complex. The jury will well be able to understand the differential admission and the use they may make of the relationship evidence. That evidence of controlling behaviour and fear contemporaneous with the rape allegations may be used in respect of them, but such evidence relating to the later period of separation may not is a concept a reasonable jury will readily grasp. And, the task of the trial judge in directing the jury and otherwise ensuring a fair trial of the accused will be manageable.

Finally, I note the obvious convenience to the administration of justice if the charges are heard together, given the commonality of witnesses and evidence. Of course, this factor alone would be insufficient to maintain the joinder of charges if there was otherwise prejudice to the accused.

Conclusion

The application for severance is refused.

The evidence of each of the charged counts is cross-admissible. The sub-category of sexual misconduct of the relationship evidence is admissible in relation to all counts. The remainder of the relationship evidence is admissible with respect to count 4 only but for representations 11, 12, 21, 52, 70, 74 and 132 which are admissible in relation to all counts.

Annexed to this Ruling are three annexures (mirroring the three hearsay notices) detailing the representations, or parts thereof, admissible in the trial and the counts in respect of which they are so admitted.

ANNEXURE 1

First Hearsay Notice

No	Representation	Date of representation	Person to whom representation made	Section	Contested or conceded		Result
1.	Not pressed.
2.	Not pressed.
3.	The deceased stated that she woke up numerous times during her relationship with the accused to find him having sex with her after she had clearly stated ‘no’ before falling asleep.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to all counts.
4.	The deceased stated that one example of non-consenting sex with the accused was when he locked her in the pantry to keep their children out when he returned home from work and that he later admitted this in a counselling session with psychologist Terence Melvin. Charge 1 – rape	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to all counts.
5.	The deceased stated that on a handful of occasions between 2013 and 2016 the accused started having sex with her while she was asleep beside one of their children. Charge 2 – rape	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to all counts.
6.	Not pressed.
7.	Not pressed.
8.	Not pressed.
9.	The deceased stated that the accused punched her very hard in the right arm when they were driving from Melbourne to Cowes after his sister’s birthday. This was in response to her asking him to slow down and turning the music down.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Excluded.
10.	The deceased stated that from the beginning of their relationship the accused always kept a very close track of her movements and locations at all times.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Excluded.
11.	The deceased stated that the accused would generally insist on accompanying her everywhere and when she was with friends he was physically possessive and inappropriately sexual in his behaviour. This made her feel uncomfortable.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to all counts.
12.	The deceased stated that when she was out with friends the accused would call her regularly to discuss minor topics like the next week’s grocery list, the possibility of changing insurers or whether she could leave what she was doing to come and do an activity with him. The accused would get very defensive, frustrated and verbally aggressive when she tried to suggest that they could discuss this later.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to all counts.
13.	The deceased stated that one evening in 2015 she went out to dinner for a friend’s birthday and left the accused with their children. Towards the end of the evening the group left the restaurant and found the accused waiting out the front of the restaurant in his car, without the children, waiting to see if the deceased ‘wanted a lift home’. The accused said that he had organised for the deceased’s mother, Janine Fraser, to watch the children.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Excluded.
14.	The deceased stated that one Friday afternoon in 2016 she left her daughter A at home asleep with the accused when she went to pick up their other children R and J from school. She left her phone in the car and was having a conversation with a teacher when the accused approached her, swearing at her for not having her phone on her. He grabbed her underneath her armpit and dragged her towards the car. The deceased was scared and embarrassed.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
15.	Not pressed.
16.	Not pressed.
17.	Not pressed.
18.	Not pressed.
19.	Not pressed.
20.	Not pressed.
21.	The deceased stated that she made several attempts to end her relationship with the accused and made several attempts to discuss the separation in 2015 / 2016.	3 July 2017	DSC Fisher (police statement)	s 65(2)(b) s 65(2)(c)	Contested.	Admitted in relation all counts.
22.	The deceased stated that in November 2016 she spoke to the accused about the damage rape was doing to their marriage.	3 July 2017	DSC Fisher (police statement)	s 65(2)(b) s 65(2)(c) s 66A	Contested.	Admitted in relation to all counts.
23.	The deceased stated that in January 2017 she spoke to the accused and James Basham about the separation including discussing domination, aggression, controlling behaviours and rape.	3 July 2017	DSC Fisher (police statement)	s 65(2)(b) s 65(2)(c)	Contested.	Admitted in relation to all counts.
24.	The deceased stated that in January 2017 she discussed the issues of rape within her marriage with Janine Fraser, Trevor Fraser and James Basham.	3 July 2017	DSC Fisher (police statement)	s 65(2)(b) s 65(2)(c) s 66A	Contested.	Admitted in relation to all counts.
25.	The deceased stated that although she had suggested that it might not be appropriate, she had reconciled with the accused briefly at his request around the time of their 10^th wedding anniversary.	3 July 2017	DSC Fisher (police statement)	s 65(2)(b) s 65(2)(c)	Conceded.	Admitted in relation to count 4.
26.	The deceased stated that she continued to observe controlling and abusive behaviours by the accused after their reconciliation causing her to end the relationship permanently around Easter 2017.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
27.	The deceased stated that the accused aggressively berated her for ruining a bike ride causing her to feel intimidated and distressed.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
28.	The deceased stated that the accused yelled at her that it was her fault that the children J and R would not do what he told them because she did not discipline them properly. The deceased cried and felt despair and a sense of hopelessness.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Excluded.
29.	The deceased stated that the accused was reluctant for her to do things without him and became defensive when she organised anything without involving him.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
30.	The deceased stated that the accused timed her with his phone stopwatch whilst she was helping him do jobs, stopped the timer if she moved away from these activities and yelled at her and berated her for laziness.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
31.	The deceased stated that when she tried to assert her views or ideas, the accused responded by telling her that she was a bully and was controlling.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
32.	The deceased stated that after she requested physical space the accused’s behaviour became increasingly sexualised in public. He used big open arms to pull her in for hugs, grabbed her bottom and grabbed her chin to force a kiss on her lips involving his tongue. The accused became defensive and sulky if she moved away. The deceased felt coerced, manipulated and controlled by this behaviour, and in despair and panic.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
33.	The deceased stated that the accused yelled at her for not emptying the vacuum cleaner and putting it away when she was on her way to have brunch with their daughter J in the term 1 school holidays of 2017.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
34.	The deceased stated that in March / April 2017 the accused photographed a wall clock and timed her as she performed household jobs. He later showed her the stopwatch, told her she had been unproductive and yelled at her for being lazy and ungrateful.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
35.	The deceased stated that in April 2017 while her cousin Sarah and her husband Andy were visiting they had a discussion with her and the accused about house break-ins and car thefts. Afterwards the accused raised this conversation with the deceased a number of times. On at least three occasions on one day the accused said to the deceased ‘you never know when someone will break into your house and do you harm’ followed by lengthy, heavy pauses. The deceased felt like these comments were designed to make her afraid.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
36.	The deceased stated that on Easter Saturday of 2017 she again broached the subject of separation with the accused. The accused was initially angry and refused to discuss it, but when she persisted he refused to move out of the house and said that she could not make him.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
37.	The deceased stated that on 20 April 2017 the accused took their children to the house of her mother Janine Fraser for a sleepover. Janine Fraser suggested that the accused hand them over at the door but the accused pushed past, came into the house and refused to leave for almost an hour. When he did so he was aggressive and intimidating to Janine Fraser and the deceased and criticised them about the evening routine.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Excluded.
38.	The deceased stated that on 22 April 2017 the accused grabbed her on the buttocks, wobbled her buttocks and made a comment about how aroused he was. When she put some distance between them and commented that this was inappropriate he became defensive and stormed off.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
39.	The deceased stated that she was concerned that the accused was using the location app on her phone to track her whereabouts. When she asked him about this he was evasive. When she disabled the location app, she received a call from the accused within about an hour in which he was angry, demanded to know where she was and berated her for disabling the location app.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
40.	The deceased stated that on an occasion in 2014 the accused had non-consensual sex with her in the pantry. The accused locked the door of the pantry from the inside and undid her jeans. She protested but the accused pulled down her underwear and put his penis into her vagina. He had sex with her for a minute or two before ejaculating inside her vagina. The accused then unlocked the pantry and left. Charge 1 – rape	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to all counts.
41.	The deceased stated that on an occasion in 2014, the accused had non-consensual sex with her whilst she was asleep and their three year old child R was in the same bed. The deceased woke up to the accused thrusting his penis into her vagina. She said that she had woken up to the accused doing this and that it had started when she was asleep. The deceased stated that she pushed back into the accused to avoid R realising what was happening. The accused ejaculated, then rolled over and fell asleep. The deceased got out of bed and took R back to his bed. Charge 2 – rape	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to all counts.
42.	The deceased stated that the last time the accused raped her was in September or October 2016 when the accused had non-consensual sex with her whilst she was asleep. The deceased and accused went to bed together. The deceased fell asleep fully clothed and later woke up to the feeling of coldness. She realised that the accused had pulled down her pants whilst she was asleep, poured lubricant onto his penis and then put his penis into her vagina. She froze for a moment before pushing herself off the accused and getting out of bed. She told the accused ‘you can’t do that, I was sleep, that is rape’ then went and slept in one of their children’s rooms. Charge 3 – rape	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to all counts.
43.	Not pressed.
44.	Not pressed.
45.	Not pressed.
46.	Not pressed.
47.	Not pressed.
48.	Not pressed.
49.	The deceased stated that on one occasion the accused took her into the pantry while their children were outside and forced her to have sex while A was calling out for her. Charge 1 – rape	Late 2016 / Early 2017	Nadine Leed	s 65(2)(c)	Contested.	Admitted in relation to all counts.
50.	Not pressed.
51.	The deceased discussed an upcoming court hearing on 30 July 2018 and stated that she was strong, determined and ready to stand up in court, tell her story and have her voice heard.	Late 2016 / Early 2017	Nadine Leed	s 66A	Conceded.	Admitted in relation to all counts.
52.	Not pressed.
53.	Not pressed.
54.	Prior to her separation with the accused the deceased stated on a number of occasions ~~about the accused’s controlling behaviours and~~ that she was scared of ~~him~~ the accused.	Prior to Summer 2016 / 2017	Alice Munro	s 65(2)(c)	Conceded vis-à-vis s 66A, but not s 65(2)(c).	Admitted in relation to all counts pursuant to s 66A.
55.	Not pressed.
56.	Not pressed.
57.	Not pressed.
58.	The deceased stated that she ended her marriage with the accused because she was sick of abuse. She described several different events in relation to that abuse and said she felt controlled and manipulated.	At around time of separation	Lija Matthews	s 65(2)(c) s 66A	Conceded vis-à-vis s 66A, but not s 65(2)(c).	Excluded.
59.	Not pressed.
60.	Not pressed.
61.	Not pressed.
62.	Not pressed.
63.	The deceased stated that the accused told her that he would destroy her and she believed he would if given the chance.	2018	Christina Aitken	s 65(2)(c) s 66A	Contested.	Admitted in relation to count 4.
64.	Not pressed.
65.	Not pressed.
66.	The deceased stated that she believed that the accused was conducting some form of surveillance on her.	2018	Christina Aitken	s 66A	Conceded.	Admitted in relation to count 4.
67.	Not pressed.
68.	Not pressed.
69.	Not pressed.
70.	The deceased stated that she was planning to separate from the accused.	November 2015	Rebecca McFarlane	s 66A	Conceded vis-à-vis charge 3, but not charge 4.	Admitted in relation to all counts.
71.	Not pressed.
72.	Not pressed.
73.	Not pressed.
74.	The deceased stated that she was frightened of the accused and she felt that things were going to get much worse. ~~She said that one day she would be found dead~~. The deceased said that she was petrified of ~~Adrian~~ the accused and what the separation might mean in her life ~~and the lives of the children~~.	November 2015	Rebecca McFarlane	s 66A	Contested.	Admitted in relation to all counts.
75.	Not pressed.
76.	Not pressed.
77.	Not pressed.
78.	Not pressed.
79.	Not pressed.
80.	Not pressed.
81.	Not pressed.
82.	Not pressed.
83.	The deceased stated that she was very frightened of the accused ~~and said ‘if you ever find me dead, you’ll know that he will have done it’.~~	Prior to separation	Peta Le Roy	s 66A	Contested.	Admitted in relation to count 4.
84.	The deceased stated that the accused was physically intimidating and that she was scared of him. She said that on one occasion he had backed her into a corner and made her feel trapped and intimidated. The deceased said that she was contemplating whether to end her relationship with the accused.	Prior to separation	Luke Henderson	s 65(2)(c) s 66A	Contested.	Admitted in relation to count 4 pursuant to s 66A.
85.	The deceased stated ~~that the accused needed to know where she was when she was not with him and~~ that she needed to answer the accused’s repeated calls to avoid upsetting him.	August 2016 onwards	Emily Bathgate	s 65(2)(c)	Contested.	Admitted in relation to count 4.
86.	Not pressed.
87.	Not pressed.
88.	The deceased stated that on an occasion when she had been at the school to collect her children, the accused appeared, angrily grabbed her arm and forcefully pulled her out of the school. As he did this, the accused angrily raised his voice demanding why she did not answer her phone and saying that she was a bad mother. The deceased said that she was extremely upset and in tears.	October 2016	Emily Bathgate	s 65(2)(c)	Contested.	Admitted in relation to count 4.
89.	Not pressed.
90.	The deceased stated that she was in fear of the accused.	Christmas 2017	Luke Edgerton	s 66A	Conceded	Admitted in relation to count 4.
91.	The deceased stated ~~that the accused was very controlling and~~ that she was frightened of the accused.	March / April 2016	Alice Bradley	s 66A	Conceded.	Admitted in relation to count 4.
92.	The deceased stated that the accused had raped her and that she was going to bring charges against him.	After separation	Alice Bradley	s 65(2)(c)	Contested.	Admitted in relation to all counts.
93.	Not pressed.
94.	Not pressed.
95.	The deceased was upset, bawling and shaking and stated that she had been locked out of her email accounts and that her mobile phone access had been removed. She said that she had just split from her partner and that he had taken control of her phone and email accounts.	Mid 2017	Zena Benbow	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
96.	The deceased asked Benbow to investigate whether there were any apps on her devices which might give away her location to a third party. She said that she suspected her partner was able to track the devices as he had called her and asked whether she had enjoyed being at a certain place, which there was no way he could have known.	April 2017	Zena Benbow	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
97.	Not pressed.
98.	Not pressed.
99.	The deceased stated that she was having ‘husband/wife problems’ and that she was withdrawing from everything and feeling insecure. She said ~~that the accused was aggressive and~~ that she was on the verge of a panic attack, not eating well and having problems with breathing (tightness in the chest).	December 2016	Brigitte Linder	s 66A	Conceded.	Admitted in relation to count 4.
100.	Not pressed.
101.	The deceased phoned Nicole Stanes of Bass Coast Health for assistance from Brigitte Linder’s telephone as she said she was worried that the accused was monitoring her telephone use.	March 2017	Brigitte Linder	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
102.	Not pressed.
103.	Not pressed.
104.	Not pressed.
105.	Not pressed.
106.	Not pressed.
107.	Not pressed.
108.	Not pressed.
109.	Not pressed.
110.	Not pressed.
111.	Not pressed.
112.	The deceased stated that there had been instances when she had woken up to the accused having sex with her.	10 May 2017	Nicole Stanes	s 65(2)(c)	Contested.	Admitted in relation to all counts.
113.	Not pressed.
114.	The deceased stated that the accused ~~did not begin raping her until they were married and that it was later in their marriage that he~~ began to rape her in her sleep. The deceased said that she named this behaviour directly to the accused as rape but he did not stop.	5 February 2018	Nicole Stanes	s 65(2)(c)	Contested.	Admitted in relation to all counts.
115.	Not pressed.
116.	Not pressed.
117.	Not pressed.
118.	Not pressed.
119.	Not pressed.
120.	Not pressed.
121.	Not pressed.
122.	The deceased ~~stated that the accused exhibited controlling and intimidatory behaviour in their relationship, including physical abuse, and~~ expressed her fear about leaving ~~him~~ the accused.	9 March 2017	Terence Melvin	s 65(2)(c)	Conceded, if limited to fear about leaving the relationship.	Admitted in relation to count 4 pursuant to S 66A. Duplicate of representation 125.
123.	The deceased stated that the accused had been controlling her, checking up on her, exerting financial control and physically intimidating her.	9 March 2017	Terence Melvin	s 65(2)(c)	Contested.	Excluded.
124.	Not pressed.
125.	The deceased stated that she was fearful about leaving the accused.	9 March 2017	Terence Melvin	s 65(2)(c) s 66A	Conceded vis-à-vis s 66A but not s 65(2)(c).	Admitted in relation to count 4 pursuant to S 66A. Duplicate of representation 122.
126.	The deceased expressed anxiety about leaving the accused and said she was fearful. She said that she had decided to separate and that the accused had difficulty accepting the decision. She said that she was frightened and believed that the accused was likely to become vindictive.	19 April 2017	Terence Melvin	s 66A	Conceded, except as to belief that accused was likely to become vindictive.	Admitted (in total) in relation to count 4.
127.	The deceased stated that she had been raped by the accused during their marriage. She described a number of situations when the accused would demand sex even though she didn’t want it. She described having picked the accused up from the airport on multiple occasions and him having forced her to have sex in the car on the way home against her wishes. ~~She also~~ described the accused waking her up in the middle of the night and forcing her to have sex.	19 April 2017	Terence Melvin	s 65(2)(c)	Contested.	Admitted in relation to all counts.
128.	The deceased stated that she had been sexually assaulted by the accused. She described an incident during the relationship that took place at the family home in Phillip Island and said that the accused had pushed her into a cupboard and forced her to have sex with him. Charge 1 – rape	21 April 2017	Terence Melvin	s 65(2)(c)	Contested.	Admitted in relation to all counts.
129.	The deceased stated that she was anxious, fearful and terrified of the accused ~~and said he had made threats in the past~~.	25 April 2017	Terence Melvin	s 66A	Conceded.

130.	The deceased stated that the accused was being aggressive and uncooperative during their separation, especially regarding the division of assets and child custody arrangements. ~~She said that the accused had once told her ‘if I can’t have you, no one will’.~~	3 May 2017 to 20 December 2017	Terence Melvin	s 66A	Conceded.	Admitted in relation to count 4.
131.	The deceased stated that she wanted to report historical sexual assaults and to discuss getting an intervention order against the accused.	28 April 2017	SC Andy Lone	s 65(2)(c) s 66A	Conceded.	Admitted in relation to all counts.
132.	The deceased stated that the accused had committed family violence on her.	28 April 2017	Sgt Robyn Heal	s 66A	Conceded.	Admitted in relation to all counts.
133.	Not pressed.
134.	Not pressed.
135.	The deceased stated that she had concerns that the accused was watching her.	12 May 2017	Kristii Slatter	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
136.	Not pressed.
137.	Not pressed.
138.	Not pressed.
139.	Not pressed.
140.	The deceased stated that she believed that the accused had been going through the phone numbers in her phone and calling each person she had been calling, stating he ‘had the wrong number’ and hanging up.	23 May 2017	Kristii Slatter	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
141.	Not pressed.
142.	Not pressed.
143.	The deceased stated that she had had sensor lights installed at her house and had had her garage door remote control re-coded.	28 June 2017	Kristii Slatter	s 65(2)(c)	Conceded if vis-à-vis s 66A.	Admitted in relation to count 4.
144.	The deceased stated that she had been hearing noises outside her house at night and thought that she may have seen her husband outside at night. She requested that security cameras be installed in her home.	29 August 2017	Kristii Slatter	s 66A	Conceded if vis-à-vis s 66A.	Admitted in relation to count 4 pursuant to s 66A.
145.	Not pressed.
146.	The deceased stated that she was fearful of the accused.	18 January 2018 – 20 March 2018	Donna Zander	s 65(2)(c) s 66A	Conceded.	Admitted in relation to count 4.
147.	The deceased stated that she did not want to be put on social media as she was afraid of the accused knowing where she was.	15 January 2018	Donna Zander	s 66A	Contested.	Excluded.
148.	Not pressed.
149.	Not pressed.
150.	Not pressed.
151.	Not pressed.
152.	Not pressed.
153.	Not pressed.
154.	Not pressed.
155.	Not pressed.
156.	The deceased stated that ‘the only flight or fight reaction I can remember was with J and the last time in October pushing myself against the wall and whispering angrily ‘you can’t do that, you just raped me, you can’t do that’ and I remember at night I would wake up and he was having sex with me. Charge 3 – rape	7 February 2018	Donna Zander	s 65(2)(c)	Contested.	Admitted in relation to all counts.
157.	Not pressed.
158.	Not pressed.
159.	Not pressed.
160.	Not pressed.
161.	Not pressed.
162.	Not pressed.
163.	Not pressed.
164.	Not pressed.
165.	Not pressed.
166.	Not pressed.
167.	The deceased stated that the accused had ‘hacked’ her phone ~~and set up a camera in the dining room of her home~~.	31 July 2017	LSC Ann Barnes	s 66A	Conceded.	Admitted in relation to count 4.
168.	Not pressed.
169.	The deceased stated that she was fearful of the accused~~, his escalating behaviour, his mental health and what he was capable of~~.	31 July 2017	LSC Ann Barnes	s 66A	Conceded.	Admitted in relation to count 4.
170.	Not pressed.
171.	Not pressed.

ANNEXURE 2

Second Hearsay Notice – Sharon Churchill

No	Representation	Date of Representation	Section	Contested or conceded	Result
SC1.	The deceased stated that she wanted family violence counselling regarding the accused and was assessing her options regarding separation. The deceased stated that she had requested separation from the accused but he had refused.	27 January 2017	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
SC2.	The deceased stated that she was seeking support, information and resources in relation to separation ~~and abuse~~ by the accused who had agreed to live elsewhere for a trial period on his next stint home from FIFO work.	9 February 2017	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
SC3.	Not pressed.
SC4.	The deceased stated that the accused monitored her phone calls and online activity ~~and controlled financial matters~~.	9 February 2017	s 65(2)(c)	Contested.	Admitted in relation to count 4.
SC5.	The deceased stated there were ~~instances of sexual coercion throughout her marriage to the accused including an incident three days following the birth of their first child and on~~ several occasions waking up to the accused having sex with her.	9 February 2017	s 65(2)(c)	Conceded vis-à-vis charges 2 and 3, but not otherwise.	Admitted in relation to all counts.
SC6.	The deceased stated there was an incident of physical harm when the accused punched her arm while driving.	9 February 2017	s 65(2)(c)	Contested.	Excluded.
SC7.	Not pressed.
SC8.	The deceased stated that she was feeling safe and that the accused’s father was acting as mediator in relation to finances and their children and that he had stored the accused’s guns in a safe unknown to the accused.	9 February 2017	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
SC9.	Not pressed.
SC10.	The deceased stated that she and the accused remained separated but that he was refusing to leave the family home. The deceased requested a joint appointment with Sharon Churchill and Nicole Stanes.	18 April 2017	s 65(2)(b) s 65(2)(c)	Conceded.	Admitted in relation to count 4.
SC11.	The deceased stated that she was staying with her parents and seeing the children only when she was taking them to and from school. The deceased stated that she did not believe the children were at risk of harm from the accused.	18 April 2017	s 65(2)(b) s 65(2)(c)	Conceded.	Admitted in relation to count 4.
SC12.	The deceased stated that she and her children were back in the family home, the accused had agreed to separation, she had sought legal advice and self-referred to SalvoCare’s Family Violence Case Management Service and was on the waitlist.	10 May 2017	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
SC13.	Not pressed.
SC14.	The deceased stated that the accused had continued to harass her via text and phone calls including words / phrases ~~threats~~ such as ‘you never know when someone will break into your house and do you harm’.	10 May 2017	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
SC15.	Not pressed.
SC16.	Not pressed.
SC17.	The deceased stated that there had been instances when she had woken up to the accused having sex with her.	10 May 2017	s 65(2)(c)	Contested.	Admitted in relation to all counts.
SC18.	Not pressed.
SC19.	Not pressed.
SC20.	Not pressed.
SC21.	Not pressed.
SC22.	Not pressed.
SC23.	Not pressed.
SC24.	The deceased stated that the accused was attempting to undermine arrangements for access to their children by trying to change same by email.	15 July 2017	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
SC25.	The deceased, in an email, requested details of local security system installers.	3 October 2017	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
SC26.	The deceased stated that the accused had applied for an IVO against her, citing physical, financial and sexual abuse and that he had also applied for an IVO against her mother.	3 October 2017	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
SC27.	Not pressed.
SC28.	Not pressed.
SC29.	Not pressed.
SC30.	Not pressed.
SC31.	The deceased stated that she felt safe for the first time in months as her parents had moved in with her for support and protection.	4 January 2018	s 66A	Conceded.	Admitted in relation to count 4.
SC32.	Not pressed.
SC33.	Not pressed.
SC34.	Not pressed.
SC35.	The deceased ~~stated that she had increased safety concerns for her children if the accused was able to have access. She said she felt unprotected and judged by police. She~~ said she felt unsafe in the long term, particularly following court. ~~She said that the accused had warned her about lack of protection.~~	20 July 2018	s 65(2)(c) s 66A	Contested.	Admitted in relation to count 4.
SC36.	The deceased stated that she felt more vigilant about her safety as the accused had been sighted on Phillip Island.	20 July 2018	s 65(2)(c)	Conceded.	Admitted in relation to count 4.
SC37.	Not pressed.
SC38.	The deceased stated that her parents were in the United States and returning the following week. She said she was looking forward to a birthday celebration with her sister on Sunday 22 July 2018 and that Nicole Stanes would be supporting her at the committal hearing the following week.	20 July 2018	s 66A	Conceded.	Admitted in relation to count 4.

ANNEXURE 3

Third Hearsay Notice

No	Representation	Date of Representation	Person to whom representation made	Section	Contested or conceded	Result
1.	The deceased stated that around March-April 2017 she tried to discuss with the accused that she was concerned that his behaviour was still very controlling.	3 July 2017	DSC Simon Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
2.	The deceased stated that around March-April 2017 she tried to discuss with the accused that in the event they separated whether she and the children could remain in the house, the accused responded that if he couldn’t be in the house she didn’t deserve it and it was only fair if she suffered too.	3 July 2017	DSC Simon Fisher (police statement)	s 65(2)(c)	Contested.	Admitted in relation to count 4.
3.	The deceased stated that her birthday the previous year was horrible and that she had considered taking her own life because she was sick of the situation with the accused as he was taking everything away from her.	20 July 2018	Wayne Foster	s 66A	Conceded.	Admitted in relation to count 4.
4.	The deceased responded to a text message ‘how will you remember this birthday in years to come?’ with ‘the beginning of a wonderful new stage of my life xo’	23 July 2018	Wayne Foster	s 66A	Conceded.	Admitted in relation to count 4.
5.	The deceased stated that she had an appointment at Bass Coast Health for a job interview at 12.00pm.	23 July 2018	Wayne Foster	s 66A	Conceded.	Admitted in relation to count 4.

[2021] VSC 349

18 June 2021