R v Basham (Ruling No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2019 0229

THE QUEEN	Crown
v
ADRIAN JAMES BASHAM	Accused

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2022
DATE OF JUDGMENT:	7 March 2022
CASE MAY BE CITED AS:	R v Basham (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 107

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CRIMINAL LAW – Accused charged with murder – Deceased was the estranged wife of the accused – Deceased found hanged in the garage of the former matrimonial home – Deceased had obtained Family Violence Intervention Order against accused – Accused charged with rape of deceased and facing committal hearing at time of death – Central issue is whether the deceased was murdered or died by suicide.

EVIDENCE – Hearsay evidence – Relationship evidence – Crown 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 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) ss 26 and 27.

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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 Halphen with Ms A Beech	Slades & Parsons Criminal Lawyers

HER HONOUR:

The accused is charged with the murder of his estranged wife.[1]
[1]The Crown allegations are detailed extensively elsewhere and are not here repeated.

The deceased was last seen alive at a café at about 11.00am on 23 July 2018. CCTV footage from a neighbouring address shows her car returning to her home in Cowes at approximately 11.22am. A telephone call made to her mobile telephone at 11.36am went unanswered. She failed to attend an appointment in Wonthaggi at 12.00pm.

Just after 5.00pm on the same day, police found the deceased in the garage of her home hanged from a rope attached to the track of the automatic sectional garage door. The deceased’s vehicle was parked inside the garage. There was apparent blood staining to the rope and in the deceased’s hair. The deceased’s hair was unkempt, having come loose from a ponytail, and there was a clump of apparent hair attached to the rope some distance above her head. The deceased had bruising to her scalp and, upon later post-mortem examination, was found to have sustained a poorly developed focal traumatic axonal injury to the brain. The deceased had an injury to the fingernail on her left little finger. A three-step ladder tipped onto its side was located beside the deceased’s body.

The Crown case is that the accused murdered the deceased and attempted to make it look like suicide.

In the Defence Response to Summary of Prosecution Opening the accused admits to being present at the deceased’s home[2] on 23 July 2018 and doing so in breach of a Family Violence Intervention Order (‘FVIO’). He asserts he did so at the invitation of the deceased. He further asserts that he spoke with the deceased there and that there was a ‘limited physical confrontation’.[3] He denies causing the death of the deceased. He further denies interfering with the scene so as to make it appear that the deceased suicided.
[2]In a ‘Further Defence Response’ (‘FDR’) filed on 4 March 2022, this includes an admission to being ‘present in the garage with the deceased’ at ‘some stage’.
[3]In the FDR ‘the accused admits causing the non-fatal injuries to the deceased, but did not cause all injuries intentionally’. It is not clear whether the characterisation of the physical confrontation as ‘limited’ is maintained.

The relationship between the accused and deceased as at 23 July 2018 was poor. They had been separated since early 2017. In April 2017 the deceased approached police and made a number of allegations of family violence against the accused, including of sexual assault. From 19 May 2017 a FVIO had prevented the accused from being at 19 Seagrove Way, Cowes (the deceased’s residence and the former matrimonial home) and (with very limited exception) being in contact with or near the deceased. There are three children of the marriage. The accused had some contact with the children until September 2017, after which the deceased refused the accused further access. Family Court proceedings were on foot, with respect to both property and custody matters. And, on 3 July 2017 the deceased had sworn two police statements alleging that during the course of the marriage she had been raped by the accused.

Charges of rape were issued against the accused on 24 August 2017. Those charges were listed for a contested committal hearing at the Latrobe Valley Magistrates’ Court on 30 July 2018, being one week after the death of the deceased.

Relationship Evidence

At the trial the Crown intends to lead evidence of the relationship between the accused and deceased.[4] For the purposes of this Ruling, that relationship evidence comprises hearsay representations made by the deceased prior to her death. The Crown has filed three Notices pursuant to s 67 of the Evidence Act 2008 (Vic) (‘EA’) containing a combined total of 103 representations. Those Notices have been reproduced in the Annexures to this Ruling.
[4]Pursuant to the Jury Directions Act 2015 (Vic) (‘JDA’), ss 26(c) and (d).

In general terms the Crown argues that this body of evidence establishes that as at 23 July 2018 the deceased was extremely fearful of the accused and, as a result, would not have invited the accused to her house nor got out of her car after her arrival home if she had been aware of his presence at the house. These factual issues (raised by the Defence Response) are critical to the essential choice facing the jury: was the deceased murdered or did she suicide? The Crown also relies upon the imminent committal proceedings as motive.

The defence concedes that some of the relationship evidence is admissible, but objects to a large number of the hearsay representations on the basis that they are either irrelevant or impermissibly prejudicial.

Previous Ruling

I have made a previous Ruling with respect to most of the hearsay relationship evidence now pressed by the Crown.[5] That Ruling was made at a time when the indictment before the Court charged the accused with not only murder but three counts of rape. As a result of an interlocutory appeal, the indictment was severed.[6] Accordingly, the rulings made with respect to the relationship evidence must be revisited in light of the now single count indictment.
[5]R v Basham [2020] VSC 349R (‘Basham (Ruling No. 1)’ or ‘Previous ruling’).
[6]R v [Fleming] [2021] VSCA 206 (‘Fleming’).

However, there are two matters that are not revisited in this Ruling. First, I adopt my earlier findings with respect to ss 65(2)(b), 65(2)(c) and 66A of the EA as to whether or not each hearsay representation (common to the previous Ruling and this Ruling) falls within an exception to the s 59(1) EA hearsay rule. The defence now argues irrelevance[7] or unfair prejudice[8] as the basis for objection to the representations in contention rather than impermissible hearsay. Second, I adopt, without repetition, the prior analysis of legal principle of the basis upon which relationship evidence is admissible.[9] In this Ruling I revisit the application of that principle in light of the changed form of the indictment, the obiter dictum in Fleming as to the relevance of parts of the relationship evidence and the altered position of both the Crown and the defence as to certain representations.
[7]EA, s 56.
[8]EA s 137 and/or s 135.
[9]The prior analysis considers authorities cited in Fleming, notably Wilson v The Queen (1970) 123 CLR 334 and R v Gojanovic (No 2) [2007] VSCA 153.

Structure of Ruling

Both the written and oral arguments of the parties addressed the representations in groups. Those groups are mostly adopted in this Ruling.

Conceded representations

I turn first to the 32 representations that are (still) conceded as admissible by the defence. These are representations 25, 51, 54, 90, 91, 99, 122, 131, 143, 144, 146, 169, SC1, SC2, SC8, SC10, SC11, SC12, SC14, SC24, SC25, SC26, SC31, SC36, SC38, 3.3, 3.4, 3.5, 3.6, 3.8, 3.9 and 3.10.

These representations comprise statements of fear of the accused by the deceased made between about March 2016 and 20 July 2018,[10] a representation as to difficulties in the marriage,[11] representations about reconciliation of the marriage between the accused and deceased around the time of their tenth wedding anniversary and subsequent separation,[12] representations concerning the obtaining of a FVIO,[13] representations concerning increased security measures at the deceased’s home,[14] a representation as to a (possible) threat made by the accused[15], representations as to the deceased’s attitude to giving evidence in the pending committal hearing[16] and representations as to the deceased’s mental health in July 2018.[17]
[10]Representations 54, 90, 91, 122, 146, 169, SC31 and SC36.
[11]Representation 99.
[12]Representations 25, SC1, SC2, SC8, SC10, SC11, SC12, SC24 and SC26.
[13]Representation 131.
[14]Representations 143, 144, SC25, and 3.9.
[15]Representation SC14.
[16]Representations 51, SC38 and 3.6.
[17]Representations 3.3, 3.4, 3.5, 3.8 and 3.10.

Through these representations the jury may accept that the marriage had been in difficulty for at least a couple of years and the separation was difficult. The jury will hear that for about two years prior to her death the deceased had expressed fear of the accused and acted on that fear to the extent of obtaining a FVIO and having sensor lights installed at her house and her garage door remote control recoded. I note that none of the representations of fear contain any statement as to the basis of that fear.

Representations of sexual misconduct

The deceased made various representations as to sexual misconduct against her in sworn police statements and to both friends and psychological/counselling professionals. There has been a significant change in the defence position concerning the admissibility of those representations. As a result and, after negotiation with the Crown, the following matters will go before the jury as agreed facts.[18] This agreed statement subsumes 17 representations.[19]
[18]This agreement was reached after pre-trial argument was heard.
[19]Representations 3, 4, 5, 22, 23, 40, 41, 42, 49, 92, 112, 114, 127, 128, 156, SC5 and SC17.

Representations by deceased in police statements
First rape
On an occasion in 2014. The accused locked the door of the pantry from the inside and undid her jeans. She said something like, ‘What are you doing? The kids are out there. No.’ 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.
Second rape
On an occasion in 2014, 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 accused ejaculated, then rolled over and fell asleep. The deceased got out of bed.
Third rape
In September or October 2016, the deceased and the 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 elsewhere.
Representations made to others
The deceased in November 2016 spoke to the accused about the damage rape was doing to their marriage.
In January 2017 the deceased spoke to the accused and his father about the separation, including discussing domination, aggression, controlling behaviours and rape.
The deceased made a report of rape to police – namely Sgt Robyn Heal, SC Andy Lone and DSC Simon Fisher – on 28 April 2017 and 3 July 2017.
The deceased made complaints of rape to two friends – namely Nadine Leed and Alice Bradley – between late 2016/early 2017 and sometime in April 2017 after her separation from the accused.
The deceased made complaints of rape to four health professionals – namely Sharon Churchill, Donna Zander, Nicole Stanes and Terence Melvin – between 9/2/17 and 7/2/18.

Representation 115 is not subsumed by the agreed facts. It is a representation made by the deceased to Nicole Stanes that when she eventually left the accused, he accused her of having an affair and of falsifying the rape allegations.

Consistent with other representations in contention, I would in any event exclude the portion of the representation concerning the accusation of having an affair. But in my view the issue of falsifying the rape allegations is, in the context of the agreed statement and other evidence, of low probative value. The jury will be told that the rape allegations were listed for contested committal and that the accused denied them.

Representation 115 will be excluded.

Representations concerning controlling behaviour

The defence submission classified representations 11, 12, 14, 26, 27, 29, 30, 31, 32, 33, 34, 35, 36, 38, 39, 66, 88, 95, 96, 101, 135, 140, 167, SC4 and 3.1 as representations concerning controlling behaviour.

Without descending to each particular representation, the defence argued that all these representations are comments by the deceased about the accused’s controlling behaviour and such comments say ‘little’[20] about whether the accused killed the deceased.
[20]Fleming, [104].

The Crown disputed that representations 26, 35, 36, 66 and 3.1 are correctly or solely described as concerning ‘controlling behaviour’. The Crown also included representations 78, 85, 86, 87, 143, 144, 155, SC3, SC24 and SC35 under the general heading of ‘controlling behaviour’. The defence addressed these representations under different headings, partly because some were not previously relied on by the accused. The Crown further divided the ‘controlling behaviour’ representations into five subgroups, namely monitoring of the deceased’s movements, electronic monitoring of the deceased, belittling of or aggression towards the deceased, superintending domestic chores and the deceased’s reaction to controlling behaviour.

I will here address 32 of the total 35 representations identified by either or both of the parties as being of ‘controlling behaviour’, as three representations (143, 144 and SC24) are conceded as admissible by the defence. I also note that five of the representations (78, 86, 87, 155 and SC3) were not pressed by the Crown at the time of the previous Ruling. And seven (66, 95, 96, 101, 135, 140 and 167) of the representations contested by the defence were conceded at the time of the previous Ruling.

That the parties did not entirely agree on what representations fell within the umbrella of ‘controlling behaviour’ perhaps illustrates the point. But, in my view, the matter is not resolved by determining whether any particular representation can be accurately described as concerning ‘controlling behaviour’ by the accused and, if so, then finding a fortiori that it is irrelevant in the trial on the basis of the Fleming obiter.

First, the observations in Fleming are not so reductive. The Court emphasised that admissible relationship evidence must be relevant to the issues arising the case. That is, it must affect the probability of the Crown case in respect of one or more of the elements of the offence for which the Crown bears the onus of proof or bear upon another issue, such as whether an accused had a motive to intentionally murder his or her victim. The Court noted that given the principal jury issue in this trial is a choice between murder and suicide, evidence that the deceased had, through police, obtained intervention orders against the accused and made allegations resulting in charges of rape against him was ‘highly relevant’. The Court further noted that the conduct leading to the intervention orders and charges and the fact that the applicant had been involved in controlling behaviour is of ‘much less relevance’.

Second, family violence encompasses a wide range of behaviours including emotional abuse, coercive behaviour or anything that controls or dominates a family member, even if such behaviour would not constitute a criminal offence.[21] Further, the effects of such family violence are now understood to have long-lasting, even lifelong lasting, impact upon both the affected person in all aspects of his or her life as well as the relationship dynamic between that person and the alleged perpetrator.[22] As a matter of logic, the specific nature of the family violence and its duration must be relevant to the nature of the impact upon the affected person and the dynamic between them and the alleged perpetrator. Where the issue is fear, the nature and duration of the family violence must be relevant to its intensity. And it must therefore be relevant to the likelihood of an affected person voluntarily placing themselves in a situation where they were alone with the alleged perpetrator, particularly after they had taken many steps, both legal and practical, to ensure and defend their physical separation.
[21]See, for example, Family Violence Protection Act 2008 (Vic), s 5 and JDA, s 60(a).
[22]See, for example, JDA, s 60(2).

A FVIO may be obtained following a single, isolated incident of family violence or following years of ongoing family violence. It follows that the mere fact that a person has obtained a FVIO is an insufficient basis for a fact finder to reason as to the true relationship between that person and the alleged perpetrator. While the behaviour that led to the FVIO may, in this trial, be less relevant that the fact of the FVIO, it is not irrelevant and nor did the Court in Fleming say it was.

In my view, the jury should have some evidence that allows them to assess the strength of the fear of the accused expressed by the deceased and not just the fact of it. That assessment is directly relevant to critical factual questions in the jury’s determination of whether the accused murdered the deceased or she suicided, namely the question of whether the deceased would have invited the accused to her home or remained at her home if she was aware of the accused’s presence.

Relationship and context evidence, as recognised in s 26 of the JDA, can involve ‘discreditable acts’ of an accused and s 27 allows for a jury direction to avoid a decision based on prejudice arising from what the jury hears about an accused. That does not, of course, mean that every representation made by the deceased about her relationship with the accused as one of ‘control’ is admissible in this trial. It is a question of fact and degree with respect to each representation and the weighing of probative value and prejudicial effect.

For the sake of convenience, I adopt the sub-groupings used by the Crown.

Monitoring of the deceased’s movements

Representations 11, 12, 14, 29, 85, 88 and 155 will be excluded.

These representations are illuminating of the humiliation and discomfort felt by the deceased at the hand of the accused. They describe his desire to know her whereabouts, manifestations of his possessiveness or him interrupting her activities undertaken in his absence. All incidents described occurred during the course of the marriage. While such behaviour by the accused, if accepted by the jury, describes an aspect of family violence relevant to the state of mind of the deceased even after separation, that there is other evidence more directly probative of her fear and that subsequent to these incidents the deceased had separated from the accused, obtained an FVIO and made criminal complaints to the police reduces their probative value. That value, when weighed against the potential prejudice to the accused in the context of the trial as a whole, compels their exclusion.

Representations 66 and 135 will be admitted.

Both representations are of the deceased’s belief that the accused was conducting some sort of surveillance on her. Both were made with respect to the post separation period and at least while the FVIO process was underway. That is, they are directly probative of the deceased’s ongoing fear of the accused and his ongoing behaviour despite the protection the FVIO afforded her. That, both alone and in combination with other evidence, such as the deceased increasing the physical security of her home to ensure that the accused had neither keys nor current access codes, is strongly probative of the critical factual issues. Further, in the context of the evidence as a whole, these representations are not unfairly prejudicial to the accused.

Electronic monitoring of the deceased

Representations 95, 140 and SC4 will be excluded. These representations are of the deceased’s belief, just prior to separation, that the accused monitored her phone calls and online activity and that just after separation he went through the numbers in her phone and ‘locked’ her phone and email accounts. There is other evidence that the deceased’s phone account was in the name of the accused. It is unremarkable that post separation the accused took steps to alter that position. And the belief as to his behaviour during the separation process as to looking at who the deceased was in contact with is not strongly probative of the deceased’s state of mind in July 2018.

Representations 39, 96, 101 and 167 will be admitted.

Representation 96 is of the deceased seeking information as to whether there were any apps on her electronic devices that might give away her location to a third party in light of the accused knowing her whereabouts at a certain place. Representation 39 is of the anger of the accused when the deceased disabled the location app on her phone. Representation 167 is of a belief that the accused had hacked the deceased’s phone. Representation 101 is of the deceased using someone else’s phone to make a professional appointment, worried of the accused’s monitoring of her phone use. All occurred post separation and are probative both of the deceased’s ongoing fear of the accused and her ongoing desire, post separation, to ensure he did not know her location at any time. When coupled with her vigilance against intrusion into her home, last expressed on 20 July 2018,[23] these representations are strongly probative of the critical factual issues in the trial and do not occasion unfair prejudice to the accused.
[23]See representation SC36.

Belittling and aggressive behaviour

Representations 27, 31 and 38 will be excluded.

The deceased’s feelings of humiliation and distress articulated in these representations were, no doubt, contributory to the overall situation of family violence portrayed by the deceased but are not strongly probative of her state of mind in July 2018.

Representation 32 will be admitted.

This representation, drawn from the deceased’s first sworn police statement, describes the deceased’s fear and panic at the accused’s unwanted sexualised behaviour after she had requested physical space. That, in combination with the formal complaint of rape, is directly relevant to the likelihood of her inviting the accused to her home or voluntarily remaining there upon discovering his presence. The jury could reason that the fear of the accused expressed by the deceased must have been, in some part, fear of further unwanted sexual behaviour. And, in the context of the agreed statement of facts as to the allegations of rape made by the deceased, no unfair prejudice flows to the accused by the admission of this representation.

Superintending of domestic chores

Representations 30, 33, 34, 78, 86, 87 and SC3 will be excluded.

The regime of the accused in using a stop watch to time the deceased as she performed household chores and berating her for the house not being clean as well as her behaviour in employing a cleaner the day before the accused returned from fly-in-fly-out work in Western Australia to avoid his anger and derision is relevant to the fear the deceased had of the accused, even post separation. The representations suggest that the deceased saw herself as ‘walking on eggshells’ during the marriage and allow the inference that, post-separation, she would not want to be anywhere near the accused. However, on balance, I am persuaded that the probative value of the representations is outweighed by the prejudice of what a jury may view as particularly contemptible behaviour. There are other admitted representations which illustrate the depth of the deceased’s fear but which are not unfairly prejudicial.

Reaction of the deceased to the accused’s behaviour

Representation SC35 will be admitted.

Three days prior to her death the deceased told Sharon Churchill that she felt unsafe in the long term, particularly following court. This representation is strongly probative of the deceased’s fear of the accused at the relevant time and was made during the same conversation in which she said that she was more vigilant about her safety because the accused had been sighted on Phillip Island[24] and that her parents were returning to Australia the following week, she was looking forward to her birthday celebration on 22 July and Nicole Stanes would support her at the committal.[25] It is directly relevant to whether the deceased would have invited the accused to her home on 23 July 2018 or would have remained there if she had been aware of his presence. It is also directly relevant to the motive asserted by the Crown. Accordingly, its probative value vastly outweighs any prejudicial effect.
[24]Representation SC36.
[25]Representation SC38.

Miscellaneous

Of the four representations identified by the defence alone as being of ‘controlling behaviour’, representations 26, 36 and 3.1 will be excluded. The actual physical process of separation and discussion of ‘controlling behaviour’ between the accused and deceased is of low probative value.

Representation 35 will be admitted. It concerns the representation of a statement made by the accused near to the time of separation concerning someone breaking into the deceased’s house and doing her harm and of the deceased’s view that it was meant as a threat. The deceased’s view that the accused had made a threat of harm to her, particularly in light of the steps she took subsequently to secure her home, is probative of her fear of the accused at the relevant time and the critical factual questions in the trial. That value outweighs any prejudice that may flow to the accused. I note that representation SC14, in near identical terms, is conceded by the defence.

Motive

I note that in written submissions the Crown argues that the accused’s ‘control’ of the deceased is ‘tied in with supporting the motive to kill’.

Essentially the Crown argues that the deceased had the courage to step outside the control of the accused by leaving the marriage and disclosing his abuse to the police. It is submitted that ‘[a] jury is entitled to reason that a controlling man, who has lost control of his relationship, is more likely to have a reason to kill his partner than one who exerted no control over the deceased during the relationship.’

While the Crown disavows a desire to use this as tendency evidence, the line between control as a reason to kill and control as a tendency to act is very fine and likely to be misunderstood by a jury. I will therefore not permit the Crown to argue that evidence of the accused having lost ‘control’ of the deceased as part of his motive to kill. That said, an argument about the accused’s motive arising from the imminent committal hearing of the rape charges is an entirely different matter.

Representations not pressed previously by the Crown

The Crown now presses 15 representations it did not at the time of the previous Ruling.

I have already addressed five of those representations (78, 86, 87, 155 and SC3) under the heading of ‘controlling behaviour’. I here turn to the remaining ten, being representations 120, 142, 158, 166, SC13, SC20, SC28, SC30, SC34 and 3.7.

Representation 120 is of a statement made by the accused in which he said that the deceased would never know when the Apex gang would come, which the deceased interpreted as a threat. The defence argues that in light of other threats concerning people breaking into the deceased’s house and doing her harm[26] this adds little and carries a danger of prejudice because of the notoriety of the Apex gang.
[26]Representation SC14 (conceded) and 35 (admitted).

In my view the notoriety of the Apex gang, if there be notoriety, is not such as to overwhelm the reason of the jury. Further, I accept the Crown’s submission that there is no evidence that the accused had any link to the Apex gang and the jury can be directed accordingly. The observations above made as to the probative value of the deceased’s perception of a threat of harm by someone who had breached the sanctity of her home applies. Further, the issuing of more than one threat strengthens the inference of fear. The probative value is not outweighed by prejudicial effect. Representation 120 will be admitted.[27]
[27]I note that the finding I made with respect to affirmative satisfaction of other representations made by the deceased to Nicole Stanes being made in circumstances which make it highly probable that each is reliable in satisfaction of s 65(2)(c) of the EA applies equally to this representation. See Basham (Ruling No. 1), [212]-[214].

Representation 142 is that post separation the accused cancelled the mobile phone number of the deceased because the account was in his name. I accept the defence’s submission that nothing relevant can be reasoned from this conduct. Representation 142 will be excluded.

Representation 158 is of a statement made by the accused to the deceased, ‘you watch me I will destroy you’. The defence argues that the probative value of the threat is diminished by the absence of specificity of the threat, including when it was said. It is submitted that it could refer to personal safety or family law proceedings. Its vagueness also occasions prejudice.

The Crown argued that while it is unclear when the threat was made, it is likely to have been made after separation. Further, it is immaterial whether the threat was concerned with personal safety, family law proceedings or something else. The threat to ‘destroy’ the deceased is a serious one and was likely to cause her to be fearful of the accused or, at the very least, to further negatively impact her view of him. It is probative of the state of mind of each of them and of the jury’s task in evaluating the likelihood that the deceased invited the accused to her home on the day of her death.

Representation 158 will be admitted. It forms part of a series of representations of threats uttered by the accused to the deceased. ‘Destroy’ is a powerful word and, in the context of other evidence, the jury may reason that the deceased believed the accused wished her harm. Even if that harm was understood only with respect to family law proceedings (although the physical security measures taken by the deceased suggest she believed otherwise), it is relevant to the critical factual issue identified by the Crown. Nor am I persuaded that in the context of the evidence that the prejudicial effect outweighs the probative value.[28]
[28]I note that the finding I made with respect to affirmative satisfaction of other representations made by the deceased to Donna Zander being made in circumstances which make it highly probable that each is reliable in satisfaction of s 65(2)(c) of the EA applies equally to this representation. See Basham (Ruling No. 1), [242]-[244].

Representation 166 is of the accused’s articulated suspicion that the deceased had had an affair with a neighbour. I accept the defence submission that this is irrelevant. Representation 166 will be excluded.

Representation SC13 is that the deceased told Sharon Churchill that the FVIO application had been made and served on the accused and the return date was 12 May 2017. Representation SC20 is that the deceased told Sharon Churchill that the FVIO had been granted.

The existence of the FVIO and the date it was granted will be before the jury. I accept the defence submission that this evidence is unnecessary. Representations SC13 and SC20 will be excluded.

SC28 is of the deceased asking Sharon Churchill for a referral to Bass Coast Health’s Sexual Assault Counselling Service. The defence argues that it is not relevant and also prejudicial, as the jury may reason that the rape allegations are true. The fact that the deceased had counselling from that service will be evident to the jury from other evidence, but the fact that the deceased asked for a referral is irrelevant. Representation SC28 will be excluded.

SC30 is a statement by the deceased that she had attended court in December 2017 and that the rape charges had been adjourned to July 2018. Again I accept the defence argument that this information will already be before the jury and that this representation does not advance the Crown case. Representation SC30 will be excluded.

SC34 is of the deceased requesting a counselling appointment in June 2018. I accept the defence argument that the request is not relevant. Representation SC34 will be excluded.

Representation 3.7 is of the deceased, on 22 July 2018, speaking about the upcoming court matter. The defence objects to the representation on the basis that it is not a representation at all, but the subjective impression and understanding of what Serena Cabello thought was said. The defence objects to the part of the representation ‘The deceased was looking forward to getting through the process and starting her life again.’

The statement of Ms Cabello is instructive. She was a close friend of the deceased of about four years standing. They had originally met through their children attending the same kindergarten. Ms Cabello states:

The last time I saw Sam was the day before she died; being Sunday the 22^nd of July 2018. This was her birthday and she had a party around her house during the afternoon. Both my son and I went and were the first to arrive.
Sam was so happy; her spirits were high and she was surrounded by her family and close friends. There was no talk about [the accused] but Sam did talk to me about an upcoming court matter that she had with [the accused]. She was really concerned about the court case but was looking forward to getting through the process and starting her life again. She seemed very excited about the prospect of returning to work and being financially independent again.[29]

[29]Depositions, 1295.

In my view the representation is admissible pursuant to s 66A of the EA. Ms Cabello’s statement makes it clear that she is referring to things she was told by the deceased, albeit not in direct speech. It is therefore a contemporaneous representation of the deceased about her feelings, intention and state of mind.

I further note that the deceased’s statement of feelings, intention and state of mind concerning the future made the day before her death is highly relevant to the essential choice facing the jury as between murder and suicide.

Representation 3.7 will be admitted.

Representations that do not align with the previous Ruling

In addition to pressing representations that were not argued at the time of the previous ruling, the Crown seek to press parts of admitted representations that were not admitted by the previous Ruling. The affected representations are 85, 129 and 130.

I have already excluded representation 85 in its entirety.

Representations 129 and 130 were both made by the deceased to Terence Melvin.

In Basham (Ruling No. 1) I admitted the representation pursuant to s 66A of the EA in the following terms ‘The deceased stated that she was anxious, fearful and terrified of the accused’. In Hearsay Notice One, the Crown had sought, but no longer seeks, to press the portion relating to the deceased’s suspicion that the accused had started a fire at the rear of the family home.

I accept the further defence submission that the deceased’s discussion with Mr Melvin about whether an intervention order was appropriate is irrelevant.

Representation 129 will be admitted in the amended form that appears in Annexure One as a contemporaneous statement of the deceased’s fear of the accused.

Representation 130 was admitted in Basham (Ruling No. 1) as it related to the reported behaviour of the accused during separation. The Crown now seeks to add ‘[the deceased] said that the accused had once told her ‘if I can’t have you no one will’.

The defence objects to that portion on the basis that it lacks specificity as to when it was said, and in what circumstances it was said.

The Crown argues that the threat is directly relevant to the murder charge and must have occurred some point after the deceased first expressed a wish to separate from the accused, being January 2017.

For the reasons articulated above as to representations of other threats made by the accused to the deceased, I am of the view that the probative value of the disputed portion is not outweighed by its prejudicial value.

Representation 130 will be admitted in its entirety.

Contested representation previously conceded

At the time of the previous Ruling the defence conceded representation 132.

Representation 132 is a statement made by the accused to Sgt Robyn Heal on 28 April 2017 that the accused had committed family violence on her.

The defence now contests this representation on the basis that it is so generic as to lack any probative value. And, further, that the representation is likely to cause prejudice through speculation by what she meant by ‘family violence’.

The Crown argues the representation was shortly followed by the deceased providing Sgt Heal with notes outlining her relationship with the accused and it is a relevant part of the narrative as to how the FVIO was sought and obtained.

Consistent with other rulings made above, the fact that the FVIO was obtained and when it was obtained will already be before the jury. In those circumstances I accept the defence argument that the expression ‘family violence’ may be open to misinterpretation.

Representation 132 will be excluded.

Representations contested absent further argument

There remain eight representations which are contested by the defence to which no argument additional to that put at the time of Basham (Ruling No. 1) is made. These are representations 21, 63, 70, 74, 83, 84, 126 and 3.2.

Representation 21 is from the deceased’s sworn police statement and recites her attempts to end the relationship with the accused in 2015/2016. Representation 70 is of the deceased stating in November 2015 that she was planning to separate from the accused.

For the reasons outlined above I am of the view that the longevity of the difficulties in the relationship between the accused and deceased is relevant to the strength of the deceased’s articulated fears of the accused. Further, in the context of the whole of the evidence, there is nothing prejudicial in these representations. And I note that representation 54, which is of similar content made prior to the summer of 2016/2017 is conceded by the defence.

Representations 21 and 70 will be admitted.

For the same reason, representations 74, 83, 84 and 126 will be admitted. Representation 74 details that the deceased expressed fear of the accused and fear of what would happen in the event of separation in November 2015. Representation 126 expresses the same sentiment in April 2017. Representations 83 and 84 are expressions of fear ‘prior to separation’. Again, in the context of the whole of the evidence, there is nothing prejudicial in these representations.

On the other hand, representation 3.2 will be excluded.

On reflection I am persuaded of the view that the accused’s statement that on actual separation in 2017 the deceased did not deserve to be in the house and it was only fair that she suffered too is of a different character to the representations of actual or perceived threats made by the accused. It may be nothing more than petulance in the face of marriage breakdown.

Representation 63 was made in 2018 when the deceased stated that the accused told her he would destroy her and she believed he would if given the chance.

For the reasons outlined with respect to representations of other threats made by the accused, I am of the view that this representation is highly probative of the critical factual issues in the trial such that any prejudice does not outweigh that value.

Representation 63 will be admitted.

Conclusion

In accordance with the individual rulings made, there are three annexures to this Ruling, which mirror the current three Hearsay Notices, which record the representations (or parts thereof) admitted in the trial.

ANNEXURE 1

First Hearsay Notice

No	Representation	Date of representation	Person to whom representation made	Section	Contested or conceded		Result
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 191	N/A	Agreed fact.
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~~. The first rape	3 July 2017	DSC Fisher (police statement)	s 191	N/A	Agreed fact.
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. The second rape	3 July 2017	DSC Fisher (police statement)	s 191	N/A	Agreed fact.
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.	Excluded.
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.	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.	Excluded.
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.
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 191	N/A	Agreed fact.
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 191	N/A	Agreed fact.
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.
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.	Excluded.
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.	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.	Excluded.
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.	Excluded.
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.	Excluded.
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.
33.	Once during the term one school holidays (2017) J asked the deceased to take her out for brunch as they had not had much ‘one-on-one’ time. Everyone else was still in their pyjamas and there were no firm plans for the day, so she said yes. As she headed down the hallway, the accused called the deceased back and asked aggressively why she was going out when there were still jobs to do. She was confused. The accused stated ‘didn’t you see the vacuum cleaner in the kitchen? You haven’t emptied it yet’. The deceased quickly emptied it and started to head out. The accused then berated her that the job was only ‘half done’ because she hadn’t put the vacuum cleaner away in the back cupboard. When the deceased said that J was waiting for her in the car and surely she could do this when she got back, the accused became angry and accused her of always heading out and leaving all the jobs to him and that she should stay until they are finished.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Excluded.
34.	The deceased stated that in March/April 2017 the accused took a photograph of the clock on the wall to indicate her start time and set a stopwatch to record her finish time. He shoved the stopwatch up into her face to show her how little she had worked and how unproductive she had been. He took a photo of the clock a little before 10am and berated her for being so slow to get started. She was called back inside and he followed her inside and shoved a photo of the stopwatch paused at 13:08 in her face and yelled at her about how lazy and ungrateful she was.	3 July 2017	DSC Fisher (police statement)	s 65(2)(c)	Contested.	Excluded.
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.
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. On the evening of Easter Sunday, she moved a few belongings into her Mum and Dad’s (who live a few houses up on the same street). The accused would not let her take the children. Because of the accused’s defensiveness and aggression towards her, she advised him to direct all his conversations through her Dad. Phone calls still came to her.	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.	Excluded.
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.
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. The first rape	3 July 2017	DSC Fisher (police statement)	s 191	N/A	Agreed fact.
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. The second rape	3 July 2017	DSC Fisher (police statement)	s 191	N/A	Agreed fact.
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. The third rape	3 July 2017	DSC Fisher (police statement)	s 191	N/A	Agreed fact.
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. The first rape	Late 2016/ Early 2017	Nadine Leed	s 191	N/A	Agreed fact.
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 2017 / Early 2018	Nadine Leed	s 66A	Conceded.	Admitted.
54.	Prior to her separation with the accused the deceased stated on a number of that she was scared of 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 pursuant to s 66A.
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.
66.	The deceased stated that she believed that the accused was conducting some form of surveillance on her.	2018	Christina Aitken	s 66A	Contested.	Admitted.
70.	The deceased stated that she was planning to separate from the accused.	November 2015	Rebecca McFarlane	s 66A	Contested.	Admitted.
74.	The deceased stated that she was frightened of the accused and she felt that things were going to get much worse. The deceased said that she was petrified of [the accused] and what the separation might mean in her life.	November 2015	Rebecca McFarlane	s 66A	Contested.	Admitted.
78.	The deceased stated that when the accused was due home from work, she had to get in a cleaner to make the house and car spotless and he was overly critical if anything was out of place.	Prior to separation	Peta Le Roy	S 65(2)(c)	Contested.	Excluded.
83.	The deceased stated that she was very frightened of the accused.	Prior to separation	Peta Le Roy	s 66A	Contested.	Admitted.
84.	The deceased said that she was scared of the accused and 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.
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.	Excluded.
86.	The deceased said that she ‘got into trouble’ with the accused for insignificant things, such as leaving half an avocado on the bench, not vacuuming an already clean car, not tidying the house to the standard the accused expected, not washing their children’s hair every night and their children being too noisy.	August 2016 onwards	Emily Bathgate	s 65(2)(c)	Contested.	Excluded.
87.	The deceased stated that when the accused would be due to fly back home from work, she would spend the day prior to his return cleaning the home, to reduce the risk of the accused getting angry.	August 2016 onwards	Emily Bathgate	s 65(2)(c)	Contested.	Excluded.
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.	Excluded.
90.	The deceased stated that she was in fear of the accused.	Christmas 2017	Luke Edgerton	s 66A	Conceded.	Admitted.
91.	The deceased stated that she was frightened of the accused.	March / April 2016	Alice Bradley	s 66A	Conceded.	Admitted.
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 191	N/A	Agreed fact.
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)	Contested.	Excluded.
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)	Contested.	Admitted.
99.	The deceased stated that she was having ‘husband/wife problems’ and that she was withdrawing from everything and feeling insecure. She said 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.
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)	Contested.	Admitted.
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 191	N/A	Agreed fact.
114.	The deceased stated that the accused 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 191	N/A	Agreed fact.
115.	The deceased stated that she wanted to leave the accused in 2015 and that when she eventually left the accused he accused her of having an affair and of falsifying the rape allegations.	5 February 2018	Nicole Stanes	s 65(2)(c)	Excluded.
120.	The deceased stated that the accused told her ‘she would never know when the Apex gang would come’ which she took as a threat. The deceased said that these threats had prompted her to contact police.	15 March 2018	Nicole Stanes	s 65(2)(c)	Contested.	Admitted.
122.	The deceased expressed her fear about leaving the accused.	9 March 2017	Terence Melvin	s 65(2)(c)	Conceded.	Admitted pursuant to S 66A.
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	Contested.	Admitted.
127.	The deceased described the accused waking her up in the middle of the night and forcing her to have sex.	19 April 2017	Terence Melvin	s 191	N/A	Agreed fact.
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. The first rape	21 April 2017	Terence Melvin	s 191	N/A	Agreed fact.
129.	~~The deceased spoke about a recent incident in which she suspected that the accused had started a fire at the rear of the family home.~~ The deceased stated that she was anxious, fearful and terrified of the accused. ~~The deceased discussed whether an intervention order was appropriate in the circumstances.~~	25 April 2017	Terence Melvin	s 66A	Contested in part.	Admitted in modified form.
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	Contested.	Admitted.
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.
132.	The deceased stated that the accused had committed family violence on her.	28 April 2017	Sgt Robyn Heal	s 66A	Contested.	Excluded.
135.	The deceased stated that she had concerns that the accused was watching her.	12 May 2017	Kristii Slatter	s 65(2)(c)	Contested.	Admitted.
140.	The deceased stated that she believed that the accused had been going through the phone numbers in her phone.	23 May 2017	Kristii Slatter	s 65(2)(c)	Contested.	Excluded.
142.	The deceased stated that the accused had cancelled her mobile phone number as the account was in his name.	31 May 2017	Kristii Slatter	s 66A	Contested.	Excluded.
143.	The deceased stated that she had had sensor lights installed in her house and had had her garage door remote control recoded.	28 June 2017	Kristii Slatter	s 65(2)(c)	Conceded if vis-à-vis s 66A.	Admitted.
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 pursuant to s 66A.
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.
155.	The deceased stated that the accused waited in the foyer at her gym for her and accused her of having an affair with a lady at gym, which she was not. The deceased said that the accused would call incessantly.	22 January 2018	Donna Zander	s 65(2)(c)	Contested.	Excluded.
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 191	N/A	Agreed fact.
158.	The deceased stated that the accused said ‘he actively said you watch me I will destroy you’.	16 February 2018	Donna Zander	s 65(2)(c)	Contested.	Admitted.
166.	The deceased stated that the accused had told her he was suspicious that she had an affair with a neighbour.	31 July 2017	LSC Ann Barnes	s 65(2)(c)	Contested.	Excluded.
167.	The deceased stated that the accused had ‘hacked’ her phone.	31 July 2017	LSC Ann Barnes	s 66A	Contested.	Admitted.
169.	The deceased stated that she was fearful of the accused.	31 July 2017	LSC Ann Barnes	s 66A	Conceded.	Admitted.

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.
SC2.	The deceased stated that she was seeking support, information and resources in relation to separation from 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.
SC3.	The deceased spoke about controlling behaviour by the accused including his criticism of her cleaning of the house and then repeating the clean even after she had hired a cleaner the day before he was to return from his FIFO work.	9 February 2017	s 65(2)(c)	Contested.	Excluded.
SC4.	The deceased stated that the accused monitored her phone calls and online activity.	9 February 2017	s 65(2)(c)	Contested.	Excluded.
SC5.	The deceased stated there were several occasions of waking up to the accused having sex with her.	9 February 2017	s 191	N/A	Agreed fact.
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.
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.
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.
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.
SC13.	The deceased stated that she had applied for an intervention order, that the accused had been served and that the IVO was to be heard in court on 12 May 2017.	10 May 2017	s 65(2)(c)	Contested.	Excluded.
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.
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 191	N/A	Agreed fact.
SC20.	The deceased stated that an IVO had been granted.	20 May 2017	s 65(2)(c)	Contested.	Excluded.
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.
SC25.	The deceased, in an email, requested details of local security system installers.	3 October 2017	s 65(2)(c)	Conceded.	Admitted.
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 66A	Conceded.	Admitted.
SC28.	The deceased asked for a referral to Bass Coast Health’s Sexual Assault Counselling Service.	9 November 2017	s 66A	Contested.	Excluded.
SC30.	The deceased stated that she had attended court on 12 and 14 December 2017 in relation to the rape charges and that the hearing had been adjourned to July.	4 January 2018	s 66A	Contested	Excluded.
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.
SC34.	The deceased requested a counselling appointment.	21 June 2018	s 66A	Contested.	Excluded.
SC35.	The deceased said she felt unsafe in the long term, particularly following court.	20 July 2018	s 65(2)(c) s 66A	Contested.	Admitted.
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.
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.

ANNEXURE 3

Third Hearsay Notice

No	Representation	Date of Representation	Person to whom representation made	Section	Contested or conceded	Result
3.1	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.	Excluded.
3.2	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.	Excluded.
3.3	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.
3.4	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.
3.5	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.
3.6	The deceased made an appointment for a blow wave on 29 July 2018. She stated that she had court the following Monday with respect to the accused and wanted to look her most presentable for that. She said that she was going to be required to stand up and talk and that the accused would be able to see her but she would not be able to see him.	18 July 2018	Ashlee Bowen	s 66A	Conceded.	Admitted.
3.7	The deceased spoke about the upcoming court matter. She stated that she was really concerned about the court case but was looking forward to getting through the process and starting her life again. The deceased said she was very excited about the prospect of returning to work and being financially independent again.	22 July 2018	Serena Cabello	S 66A	Contested.	Admitted.
3.8	In the context of discussing plans for herself and her children she said she was confident that she would be at art class on 23 July 2018 despite an appointment at 12.00pm.	22 July 2018	Christina Aitken	s 66A	Conceded.	Admitted.
3.9	The deceased requested that all the external door locks on her house be changed and the alarm recoded.	Late 2017/early 2018	Gavin Lewis	s 66A	Conceded.	Admitted.
3.10	The deceased sent a text message stating ‘not feeling well x won’t make it today. Sorry’	23 July 2018	Peta Le Roy	s 66A	Conceded.	Admitted.

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7 March 2022