R v Cullen

[2015] NSWSC 672

Supreme Court

New South Wales

Medium Neutral Citation:	R v Cullen [2015] NSWSC 672
Hearing dates:	11-15, 18-22, 25 May 2015
Date of orders:	25 May 2015
Decision date:	25 May 2015
Jurisdiction:	Common Law - Criminal
Before:	Harrison J
Decision:	Reject the tender of MFI 21.
Catchwords:	CRIMINAL LAW – murder – evidence – tender of affidavit sworn by deceased in Family Court proceedings – unfairly prejudicial – tender rejected
Category:	Procedural and other rulings
Parties:	Regina (Crown) Christopher Cullen (Accused)
Representation:	Counsel: S Herbert (Crown) W Terracini SC (Accused)   Solicitors: Director of Public Prosecutions (Crown) Archbold Legal (Accused)
File Number(s):	2014/25737
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The Crown tendered an affidavit sworn on 9 December 2013 by the deceased for use in proceedings in the Federal Circuit Court of Australia. The accused was the applicant in those proceedings and the deceased was the respondent. In that affidavit, the deceased deposed in detail and at length to the history and status of her marriage to the deceased in the context of an anticipated contest concerning access to and custody of the three infant children of the marriage. That affidavit would appear never to have been read in the family law proceedings before the death of the deceased and, by definition, had never been the subject of cross examination or other forensic challenge. As far as the evidence before me so far reveals, the accused had not responded to the affidavit before he was arrested and charged with the murder of the deceased.

2. In the nature of things, the deceased’s affidavit recalls and relates a long series of recollections about events touching and concerning her marriage to the accused and how they dealt with parenting issues following their separation. It is evident from the material to which the deceased has deposed that she and the accused were at odds in significant respects concerning these matters. That fact was neither surprising in the circumstances nor confined to them as litigants in that court.

3. The Crown tendered the affidavit as relationship evidence. Other evidence about the relationship between the accused and the deceased had already been received in the trial from friends of the deceased to whom she had allegedly complained about the accused’s treatment of her and in particular his violent actions towards her. These consisted of threats to harm or kill her on the one hand and acts of physical violence on the other hand. Some of the witnesses who gave evidence of these complaints made to them by the deceased also referred to having seen and inspected bruises or marks carried by her that were apparently referable to these assaults. No objection to any of this evidence was raised by the accused. These witnesses were available for cross-examination.

4. By definition, the deceased was unavailable for cross-examination upon her affidavit. Much of what she deposed to was mirrored in the evidence of the witnesses to whom I have just referred. A great deal of the affidavit also contains detail of conversations which are alleged to have taken place between her and several third parties.

5. At one level of examination, the deceased’s affidavit contained material arguably favourable to the accused in these proceedings. For example, the deceased deposed to her perception that he “seem[ed] to be obsessed with [her] rather than the best interests of the children.” Other portions of the affidavit suggested that the accused was, and that the deceased recognised that he was, having considerable difficulty coping with the stresses and strains of caring for the children without the day to day assistance of the deceased in the home.

6. The accused’s objection to the tender of the affidavit was based upon the proposition that it contained material that was otherwise critical of him and therefore prejudicial to him in these proceedings. He contended that the prejudice was unfair and could not be ameliorated by appropriate warnings or directions. The fact that the truth or otherwise of the affidavit could not be tested by cross-examination, and bearing in mind the absence of any obligation upon the accused to prove anything, meant that the deceased’s uncontradicted allegations would be in evidence for all purposes. The accused submitted that the probative value of the evidence was outweighed by the danger of that unfair prejudice.

7. In my view the probative value of the evidence was small. Much of what it dealt with had already been covered by material from other witnesses. Its quantitative contribution to the evidentiary mix was therefore also small. In particular, the affidavit did not contain any single piece of evidence important to the Crown case that was not otherwise directly of inferentially available from other material already tendered. On the other hand, the affidavit dealt with personal details of the marriage that were not specifically or even generally pertinent to the events that ultimately occurred. Some of this at face value painted the accused in a poor light and was definitively and unnecessarily prejudicial to him. It was unfair to him in a way that could not have been corrected by me.

8. The Crown also tendered an Initiating Application and supporting affidavit sworn by the accused in the Family Court of Australia in support of a suite of parenting orders and an order to restrain or enjoin the deceased from leaving Australia with her children. This tender was also opposed by the accused and upon the same bases.

9. However, the application and the affidavit are documents of which the accused was the author. The affidavit contained no material critical of, or prejudicial to, him. On the contrary, the affidavit contained material that was critical of the deceased. It was, on one view, material that the accused might have sought himself to tender or to have the Crown tender in its case.

10. The material had probative value concerning the state of the relationship between the accused and the deceased that was not outweighed by the danger of unfair prejudice to the accused.

11. I rejected the tender of MFI 21. I admitted the Initiating Application which was marked as exhibit “CCC”.

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Decision last updated: 03 June 2015