R v Evans (No 2) No. Sccrm-03-220

R v EVANS NO 2
[2004] SASC 3
Criminal

BESANKO J: The accused is charged with the murder of Lynn Luxton. Before the commencement of the trial, the accused filed and served two Notices pursuant to Rule 9 of the Supreme Court Criminal Rules 1992. The first Notice is dated 21 October 2003, and the second is dated 31 October 2003. In broad terms, the accused sought rulings on the admissibility of certain evidence the prosecution proposed to lead in the trial. I heard submissions on the various matters raised in the two Notices and delivered rulings before the jury was empanelled. I was not in a position to give reasons for my various rulings at the time I made them. I now do so.
Notice dated 21 October 2003
1. Evidence of the deceased’s behaviour (appearance, movements and speech) in the days leading up to her death and evidence that she appeared to be under the influence of drugs.
The prosecution proposes to lead evidence from a number of witnesses of their observations of the deceased’s appearance, movements and speech in the days leading up to her death. Some of the witnesses say the deceased appeared to be drugged or drunk, while others seem to go further and state that the deceased was under the influence of drugs. Counsel for the prosecution did not suggest that any of the witnesses have expertise in the area of the effects of drugs or alcohol on a person’s appearance, movements or speech.
The accused objects to this evidence on a number of grounds.
First, the accused submits that the evidence is irrelevant and therefore is inadmissible. There is a substantial body of evidence to the effect that the deceased had been taking sedatives for some time prior to her death. There are statements from the deceased herself that she was taking sleeping tablets. A general practitioner, Dr Paul White, will say that he was prescribing sedatives for the deceased. A pathologist, Dr Alan Cala, will say that certain drugs were detected in the deceased’s blood stream at the post mortem examination, although at low or sub-therapeutic levels. There will be evidence from Ms Pauline Jones, a carer, that she saw the accused give the deceased tablets on one occasion a few days before her death. There will be evidence from a friend of the accused, Mr Paul Lee, that he had a conversation with the accused during which the accused said that he was giving sleeping tablets to the deceased to “shut her up”, or words to that effect.
Counsel for the prosecution does not submit that the prosecution is able to prove that the accused was trying to kill the deceased by drugging her. Counsel submits that the evidence will establish that the accused was aware that the deceased was taking sedatives and assisted her in doing so, and was therefore aware that on occasions the deceased was in a sedated condition. Counsel for the prosecution submits that this is relevant when one has regard to how the deceased died. The deceased died by ligature strangulation. There were no defensive wounds, and Dr Alan Cala will say that there was no evidence of a struggle. Counsel for the prosecution submits that ligature strangulation would be easier to carry out if the deceased was drowsy or asleep at the time. The accused was aware that the deceased was taking sedatives and that on occasions she would be drowsy or even asleep. It is unlikely a third party who did not know the deceased would have that knowledge. In my opinion, those submissions are correct and the evidence is relevant.
Secondly, the accused submits that even if the evidence is relevant, some of the statements are inadmissible because they are non-expert opinion evidence. Counsel for the prosecution has made it clear that she does not seek to lead the evidence as opinion evidence. Counsel submits that a witness is able to relate what they saw or heard, a proposition which is clearly right (Normandale v Rankine (1972) 4 SASR 205) and one with which counsel for the accused did not disagree. Counsel for the prosecution submits that a person may sometimes describe another person’s behaviour by using a compendious term or expression such as “he was staggering as if he was drunk”. That does appear to be permissible (Cross on Evidence, 6^th Australian Edition, JD Heydon, para [29035]), although care needs to be taken to avoid any suggestion that the witness is giving opinion evidence.
After hearing the submissions, I went through each of the statements which were challenged and I excluded statements of opinion, particularly as to the cause of the deceased’s condition (see transcript pp.159-160). I decided that in the event that a witness did use a compendious term or expression, I would direct the jury not to use such evidence as evidence of an opinion by the witness.
Thirdly, the accused submits that even if admissible, the evidence should be excluded by reason of the fact that it is more prejudicial than probative. Counsel for the accused submits that even if relevant, the evidence is only marginally relevant. I do not think the evidence is only marginally relevant, and I refer to my reasons in relation to the first submission made by the accused. In R v Duke (1979) 22 SASR 46, King CJ discussed the discretion to exclude evidence which is more prejudicial than probative and said (at 47-48):
“The prejudice there referred to must, of course, be a prejudice additional to or distinct from the detriment to the accused’s interests involved in the probative force of the evidence. The prejudicial tendency must outweigh the probative value, as Cross on Evidence puts it in the Australian edition (1970) at p. 31, ‘in the sense that the jury may attach undue weight to it or use it for inadmissible purposes’. It was said in this case that the evidence was of such little weight that it was too dangerous to allow it to go to the jury. Generally speaking the fact that the weight to be attached to a piece of evidence is slight does not render its introduction to the jury dangerous. It must be assumed that the jury will give the piece of evidence the weight that it deserves. The danger arises only if there is something in the nature of the evidence or the manner of its presentation which would render it gravely prejudicial in the sense referred to above.”
I refer also to the discussion of this discretion in R v Swaffield (1998) 192 CLR 159 per Brennan CJ at 183-184 and Toohey, Gaudron and Gummow JJ at 191-193.
I do not think the evidence is gravely prejudiced in the sense referred to by King CJ and I decline to exclude it.
The evidence under this head is admissible and I decline to exclude it.
2. Evidence of items found in the accused’s motor vehicle.
The item used to kill the deceased was a length of rope attached to a piece of wood. It seems the piece of wood was turned or rotated thereby tightening the noose.
Police officers carried out a search of the accused’s motor vehicle on 24 March 2003, which was some thirteen days after the deceased’s death. They found the following items:
(1)    an item described by the police officers as a “rope twitch”. One of the officers who carried out the search described the item in the following way:
“The item is a rope twitch consisting of a black nylon rope 7mm in diameter, a piece of craft wood 505mm long, 36mm wide and 9mm thick. This wood has a hole drilled in each end with rope threaded through the hole, with the loose end of the rope tied off or wrapped with grey duct tape. It also consists of a chrome pipe, 19mm in diameter and 610mm long, with rope threaded through the pipe and tied off into a loop. The loose end is taped to the pipe with grey duct tape”;
(2)    two sets of handcuffs and keys;
(3)    a roll of grey 50mm duct tape;
(4)    steering lock;
(5)    a blue plastic shopping bag;
(6)    a green plastic bag, a felling hatchet, a builder’s hammer and a package of Home Brand kitchen bags.
The prosecution case is that there was an attempt to conceal within the motor vehicle some, if not all, of the above items. The prosecution case is that a number of the items were new or nearly new. The prosecution case is that the motor vehicle did not otherwise contain tools. The prosecution case is that evidence of the items found in the motor vehicle is relevant because the items represent the “killer’s tool bag”. It was not suggested by the prosecution that any of the items were in fact used to kill the deceased.
The accused submits that evidence of the items found in the motor vehicle is irrelevant and therefore is inadmissible. I think the evidence is relevant. There will be evidence that the accused regularly drove the motor vehicle in which the items were found. There will be evidence that the deceased was often a passenger in the vehicle. The deceased’s body was found at an old industrial estate at about 4:30PM on Tuesday 11 March 2003, and it is likely that she, or if she was dead, her body, was taken there in a vehicle. There is evidence that the deceased left the Bayview Hotel with the accused late in the evening of Monday, 10 March 2003. The handcuffs, duct tape and probably the rope twitch could be used for the purpose of restraining a person, and the felling hatchet, builder’s hammer and probably the rope twitch could be used to inflict grievous bodily harm or to kill a person. In my opinion, the finding of these items in the accused’s motor vehicle is relevant, and I think evidence of the other items found in the motor vehicle should also be before the jury so that they have a complete picture of what was found in the motor vehicle. This case can be distinguished from Driscoll v The Queen (1977) 137 CLR 517 where the finding of the guns, none of which had been used in the killing, was not probative of any issue in the case. In this case, the fact that the items were found in the accused’s motor vehicle does tend to establish the identity of the accused as the murderer.
The accused submits that even if the evidence is relevant, it should be excluded on the basis that it is more prejudicial than probative. I reject that submission. I do not think that the accused will suffer any prejudice if evidence of the items found in his motor vehicle is admitted over and above the detriment to the accused’s interests involved in the probative force of the evidence. In other words, I do not think evidence of the finding of the items in the accused’s motor vehicle is gravely prejudiced in the sense referred to by King CJ in R v Duke (supra) at 47 - 48.
The evidence under this head is admissible and I decline to exclude it.
3. Evidence of an inspection of the accused’s motor vehicle on 8 March 2003.
The prosecution does not propose to lead evidence of the inspection of the accused’s motor vehicle on 8 March 2003 and there is no need for me to rule on this objection.
4. Evidence of an interview between the accused and Detectives MacIntyre and Sheridan at the Whyalla Police Station on 12 March 2003.
The accused was interviewed by detectives at 8 Ralph Street, Whyalla, on Wednesday, 12 March 2003. The house at that address was owned by the deceased, and she and the accused were living in the house at the time of her death. During the interview, the accused was advised that he did not have to answer any questions, but in response to that advice he told the detectives that he wanted it “sorted out”. The prosecution proposes to lead evidence of that interview, and the accused does not object to that evidence.
After the interview at the house, the accused went to the Whyalla Police Station and a further interview was conducted by Detectives MacIntyre and Sheridan. At the outset, the accused was advised that he was not under arrest and that he was free to leave the police station. He was asked a number of questions and then he was arrested for the murder of the deceased. He was advised of his rights including his right to have a friend, relative or solicitor present during any interview or investigation. In the course of being given that advice he was asked if he would like to have somebody else present. He said:
“A. I would but I can’t think who.”
Counsel for the accused submits that at the time of the interview the Legal Services Commission provided a telephone advice service to persons in police custody charged with major indictable crimes and that the accused should have been advised of this service. Counsel for the accused submits that the investigating officer was aware of the existence of this service. Counsel for the prosecution told me that that fact was not disputed. Counsel for the accused submits that the fact that the accused was not so advised means that evidence of the interview after the accused gave the answer set out above should be excluded because that evidence was unfairly obtained.
I think the context in which the answer was given and what happened shortly thereafter are important to the resolution of this objection and it is therefore necessary to set out a reasonably lengthy part of the interview.
“Q.    Stephen, I’ll just advise you that you’re under arrest for the murder of Lynn Luxton. I must warn you that anything you say will be recorded and may be used in evidence. Do you understand that.
A.     Yeah.
Q.     Right, as an arrested person you have certain rights and it’s very important that you listen to these. Do you understand that.
Q.     Okay. You have a right to a telephone call to a nominated friend or relative to advise that person of your whereabouts. Do you wish to make a telephone call.
A.     Can I say not at this point but –
Q.     Sure.
A.     If the option is still there to call someone at a later –
Q.     Sure. You have the right to have a friend, relative or solicitor present during any interview or interrogation to which you’re subjected to while you’re in custody, okay. That means that you can have somebody else present while we speak to you.
A.     Yeah.
Q.     Would you like to have a friend, relative or solicitor present.
A.     Can I just have a break to think about it for a few minutes, have a cigarette –
Q.     Yeah, I, just before –
A.     I don’t know.
Q.     Stephen, just before we do that I’ll just finish the rest of your rights because they’re –
A.     Yeah.
Q.     Very important. All right.
A.     Yeah.
Q.     Okay, so like, if you, if you wanna have a break before you answer that right, that particular right –
A.     Yeah.
Q.     That’s fine.
A.     Yeah.
Q.     Okay. But –
A.     Yeah.
Q.     Can you answer that now. Would you like to have somebody else present.
A.     I would but I can’t think who.
Q.     Okay. All right. You have the right to an interpreter if English is not your native language. Do you need an interpreter.
A.     No.
Q.     All right. And you have the right to refrain from answering any questions while you’re in custody.
A.     Yeah, I understand that I’m just –
Q.     Okay, that means that if you don’t wanna speak to me about –
A.     I want to sort it out, I, I didn’t do anything.
Q.     Okay. And you have the right to apply for release on bail. Do you understand that.
A.     Yeah.
Q.     Al right, now would you like to take a, a break for a short time.
A.     Yeah, I’d like to have a cigarette.
Q.     That’s fine.
DETECTIVE SHERIDAN:
Q.     You understand we’ll go out to have a cigarette, we can’t talk about this, we can only talk about –
A.     Yeah.
Q.     It when we’re in here with the tape running. Do you understand that.
A.     Yeah.
Q.     Okay.
DETECTIVE MACINTYRE:
Q.     And just, and just before I, I turn the tape off, I just wanted to, to speak with you about, during the time, from the time that we turned the video tape off at, at the house when we spoke to you earlier –
A.     Yeah.
Q.     And the time that we turned the video tape on when we got back into, when we got into this room –
A.     Yeah.
Q.     Is it true that we didn’t speak about Lynn’s death or the circumstances surrounding her death during that time.
A.     That’s right. I mentioned about when we spoke on the phone whether it was –
Q.     Yeah. Okay, but we didn’t ask you any questions about her death.
A.     No, you didn’t question me.
Q.     Okay. All right, we’ll –
A.     I actually offered that information.
Q.     We’ll have a short break so you can have a cigarette. The time is 4.10 a.m.
INTERVIEW SUSPENDED
INTERVIEW RECOMMENCED
A.     The way I’m feeling feeling right now, I will need some more cigarettes before we’re done.
Q.     All right Stephen, the recording equipment has now been reactivated to record this interview. The time is 4.20 a.m. on Wednesday the 12^th day of March 2003. Stephen do you agree that the same three people are present as were present –
A.     Yes.
Q.     Before we switched the tape off when we had our break.
A.     Yes.
Q.     When we, we left, I just advised you of your rights. I’ll advise you of them again ‘cos as I said before they’re very important.
A.     Yeah right.
Q.     Okay.
A.     I realise that.
DETECTIVE SHERIDAN:
Q.     Before you go on with that, do you agree we didn’t have any conversation about this matter while we were outside, you just talked about having your smokes and all that sort of stuff.
A.     Well I did ask if I could ask questions during the interview.
Q.     That’s right, you did ask that question, yes.
A.     Yeah.
Q.     That’s all. There was no other conversation –
A.     Yeah.
Q.     About this matter.
A.     No.
Q.     Okay.
DETECTIVE MACINTYRE:
Q.     Okay Stephen, you have the right to a telephone call to a nominated friend or relative to advise that person of your whereabouts.
A.     That’s right, yeah.
Q.     Would you like a telephone call. No.
A      Not right now.
Q.     You have the right to have a friend, relative or solicitor present during any interview or interrogation to which you’re subjected to whilst in custody. Would you like to have anyone present.
A.     There’s several people I’d like to have present but I won’t put it on them, not, not a matter of this importance and we can’t wait for them to add (inaudible), so we’ll get on with it.
Q.     Okay. I’ll just –
A.     You understand what I’m saying, don’t you, like Paul, there’s my mother but –
Q.     Yeah it’s, it’s, you’re just a little bit hard to understand at the moment –
A.     Yeah.
Q.     Mate.
A.     Sorry, it’s hard to deal with.
Q.     Yeah, you can have any friend or relative you choose or, or a solicitor if you would like a solicitor to be present.
A.     Oh just set the recording equipment to, accurately, have what we say and everything.
Q.     Yeah, well, it’s really got nothing to do with what’s being recorded, all right, it’s just a right you have, to have somebody present.
A.     Yeah, I realise that and it is time that we go, try and sort it out –
Q.     Okay.
A.     What’s what.
Q.     You have the right to an interpreter if English is not your native language. Do you need an interpreter.
A.     Nuh.
Q.     And you have the right to refrain from answering any questions. That means you don’t have to speak to me about –
A.     Yeah.
Q.     Lynn’s death if you don’t want to.
A.     It’s hard but I want to get things sorted out so –
Q.     Okay. And you have the right to, to apply for release on bail.
A.     Yeah.
Q.     Do you understand that.
A.     Yeah.”
The accused was then asked a series of questions relating to the death of the deceased.
Counsel for the accused submits that the relevant principle in relation to the fairness discretion is to be found in the following passage in the joint reasons for judgment of Toohey, Gaudron and Gummow JJ in R v Swaffield (supra) at [91]:
“However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the Court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the Court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the Court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the Court but it does not prevent the development of rules to meet particular situations.”

Counsel for the accused submits that the accused’s freedom to speak was impugned by the way the detectives proceeded to question the accused after he had given the answer set out above. As I have said, counsel for the accused submits that the detectives should have advised the accused of the service provided by the Legal Services Commission. Had they done so, the accused may have utilised the service, been advised not to say anything and taken that advice. In support of his submissions, counsel for the accused referred to a number of authorities: R v King & Pitson(No. 1) (1988) 199 LSJS 104; R v King & Pitson (No. 2) (1988) 199 LSJS 111; R v Hart (1997) 194 LSJS 489.
Neither the prosecution nor the defence sought to lead oral evidence on the voir dire. Counsel for the prosecution tendered, without objection by the accused, ten police apprehension reports relating to offences allegedly committed by the accused. The offences were allegedly committed in the period between 1994 and 1997, and are relatively minor, save and except for an allegation of rape. The accused was arrested on five occasions and a report made on the other occasions. It seems that on almost all occasions when questioned by the police, the accused was willing to give his version of events.
I do not think there will be any unfairness to the accused if the interview at the Whyalla Police Station after the answer set out above is admitted. This is not a case like R v King & Pitson (No. 1) (supra) where there was in effect a de facto arrest by the police, or R v King & Pitson (No. 2) (supra) where the suspect had made it clear that he did not wish to be interviewed, or R v Hart (supra) where the suspect had on two occasions indicated that he wished to have a solicitor present. In this case, the accused was advised of his rights including his right to have a friend, relative or solicitor present during the interview or interrogation. I reject the suggestion that the detectives can be criticised for proceeding to advise the accused of all his rights before giving the accused “a cigarette break”. In my opinion, that was not an inappropriate thing to do. The accused had a break and had the opportunity to reflect on whether he wished to have someone present. He was again advised of his rights and he decided not to have someone present and he decided to proceed with the interview. I do not think there will be any unfairness to the accused in admitting evidence of the interview after the answer set out above.
I decline to exclude the evidence under this head.
Notice dated 31 October 2003
1. Evidence of witnesses as to the deceased’s ability to write letters.
5. Evidence of the letters sent to Ms Deborah Williams.
It is convenient to deal with these two topics together because they are related topics. If the letters sent to Ms Williams are inadmissible, then evidence of witnesses as to the deceased’s ability to write letters is largely irrelevant. In other words, the main relevance of the evidence of witnesses as to the deceased’s ability to write letters is in support of the contention of the prosecution that it was the accused, and not the deceased, who wrote the letters that were sent to Ms Williams.
It is convenient to start with the admissibility of the letters sent to Ms Williams (i.e., paragraph 5 of the Notice). Ms Williams lived in Adelaide and she was a friend of both the accused and the deceased. They visited her house when they were in Adelaide, and Ms Williams stayed with the accused and the deceased at 8 Ralph Street, Whyalla, for about a week in early 2003.
In early December 2002, Ms Williams received some letters in the post apparently written by the deceased. The documents that she received were as follows:
(1)    a large envelope addressed to her;
(2)    inside the large envelope, a loose typewritten letter undated and unsigned giving instructions to Ms Williams about two smaller envelopes which were in the large envelope. There is a hand-written postscript on the letter. It is convenient to call this letter “the Dear Deb letter”;
(3)    inside a smaller sealed envelope, a typewritten undated letter apparently signed by the deceased and addressed “Dear Anthony”. It seems that “Anthony” is Mr Anthony Cameron, an employee of the Public Trustee. It is convenient to call this letter “the Dear Anthony letter”;
(4)    inside a second smaller sealed envelope addressed to the accused a copy of the Dear Anthony letter.
The Dear Anthony letter suggests that the deceased had arranged her own death and exhorts him to assist the accused in dealing with various financial issues which would arise on her death.
The prosecution case is that the accused wrote the letters as part of his plan to kill the deceased and to gain access to her assets as soon as possible after her death.
In order to establish that the accused wrote the letters, the prosecution proposes to put forward the following evidence:
(1)    Mr Baker-Smith is a handwriting expert and he will identify the handwriting on the large envelope, and the handwritten postscript on the Dear Deb letter as that of the accused;
(2)    Ms Williams will say that when she raised the topic of the letters with the deceased in early 2003, the deceased looked puzzled and did not seem to know anything about the letters;
(3)    various carers and helpers who assisted the deceased with daily tasks over the years and who are in a position (submits the prosecution) to say that the deceased never expressed herself either verbally or in writing in the way set out in the letters.
The accused submits that evidence of the letters is irrelevant, and therefore is inadmissible. The accused submits that evidence of the letters is irrelevant because they refer to an “assisted suicide” involving the use of a gun. The deceased in fact died by ligature strangulation, and there is little to suggest that it was an “assisted suicide”. The accused submits that in those circumstances evidence of the letters is irrelevant. I do not agree. If the accused wrote the letters without the deceased’s knowledge, or full knowledge and understanding, then that establishes, or is capable of establishing, that he was contemplating her death and possibly considering an alibi and was seeking to remove any possible obstacles to gaining access to her assets. Those matters are clearly relevant. Evidence of the letters sent to Ms Williams is relevant and admissible.
I turn now to the admissibility of the evidence identified in paragraph 1 of the Notice. The accused submits that the evidence is not admissible on two grounds. First, he submits that the evidence is irrelevant, and secondly, he submits that even if relevant, the evidence is impermissible opinion evidence from persons not qualified to express such opinions.
In my opinion, the evidence is clearly relevant. As I have said, evidence of the letters is relevant and evidence directed to the issue of who wrote the letters is clearly relevant.
In relation to the objection that the evidence is impermissible opinion evidence from persons not qualified to express such opinions, it is necessary to set out the proposed evidence in a little detail.
There are three witnesses the prosecution proposes to adduce evidence from in relation to this topic. The first witness is Ms Karen O’Connor. Ms O’Connor is a social worker. She is employed by the Intellectual Disability Services Council as an options co-ordinator. Her role is to assist people with disabilities to live independently and to access services within the community. The deceased had an intellectual disability as a result of a motor vehicle accident and Ms O’Connor was her caseworker from 1997 to either 2000 or 2001. Before May 1999 she would see the deceased weekly, mostly at her house at 8 Ralph Street, Whyalla. Ms O’Connor would assist the deceased to plan and carry out domestic duties and daily living tasks. She will say that the deceased had difficulties with short-term memory loss, motivation, processing information, sequencing and self-control. Ms O’Connor often assisted the deceased in writing letters. She assisted the deceased in writing letters to the Public Trustee. The deceased would handwrite the letters and then bring them in to Ms O’Connor’s office where Ms O’Connor would type them on the computer. Ms O’Connor will say the deceased’s basic writing skills were all right, although she (Ms O’Connor) often had to reword the sentences.
Ms O’Connor will say the Dear Deb letter and the Dear Anthony letter could not have been written by the deceased without assistance from another person. The letters are “too well constructed”. One of the letters is organised into paragraphs which Ms O’Connor had never seen the deceased do.
The second witness is Ms Marie Vonow. She is a support worker employed by Community Support Incorporated. She was the support worker who assisted the deceased from September 1998 to October 2001, and again from October 2002 to January 2003. Her contact with the deceased varied from three times a week to once a week. Ms Vonow will say that she assisted the deceased with a number of activities including planning domestic tasks. She helped the deceased to learn how to cook and to read recipes. The deceased used a communications book and wrote down any questions or problems she had when Ms Vonow was not there. Ms Vonow read the entries from time to time. Ms Vonow helped the deceased to write formal letters including letters to the Public Trustee. She will say that the deceased’s main problem was with her memory and in being able to organise things in her life.
Ms Vonow will say that she does not think that the deceased wrote the Dear Deb letter and the Dear Anthony letter. Ms Vonow will say that the thoughts “flow” throughout the letters in a way quite different from the way the deceased composed letters, and that in relation to the Dear Anthony letter the deceased was not capable of the level of organisation revealed by statements in the letter as to where various sums of money were to go. Ms Vonow will say that the deceased did not compose the Dear Deb letter and the Dear Anthony letter.
The third witness is Ms Veronica Stanley. She also is employed by the Intellectual Disabilities Services Council as an options co-ordinator. She became the deceased’s casemanager for approximately one year commencing June 2000. She will say that her role was a monitoring role overseeing and supporting the support worker’s (Ms M Vonow) relationship with the deceased. Ms Stanley will say that the deceased had trouble understanding what she was reading and that her brain injury affected her ability to put sentences together. The deceased had trouble retaining information. Ms Stanley will say that the Dear Deb letter and the Dear Anthony letter could not have been written by the deceased. She will say:
“The words are too complex and she would not have known the meaning of a lot of the words”.
The accused’s counsel submits that Ms O’Connor, Ms Vonow and Ms Stanley should not be permitted to give the evidence which I have outlined because they are in no better position than the members of the jury to assess whether the deceased could have written the letters sent to Ms Williams. He relies on the decision of the High Court in Smith v The Queen (2001) 206 CLR 650. In that case, two police officers, who had previously seen the accused, gave evidence identifying the accused on security camera photographs. Gleeson CJ, Gaudron, Gummow and Hayne JJ said at [11]:
“Because the witness’s assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness’s assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury’s assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury.”
The court said that the evidence was irrelevant, and therefore inadmissible.
In response, counsel for the prosecution made two submissions. First, she suggested that the evidence of Ms O’Connor and Ms Vonow was not opinion evidence, but rather evidence of their experience and observations. Counsel referred to the decision of the High Court in Weal v Bottom (1966) 40 ALJR 436 per Barwick CJ at 438 and Taylor J at 442. In the alternative, counsel for the prosecution submitted that the evidence fell into the category of admissible opinion evidence from a non-expert and she referred to the discussion in Cross on Evidence, 6^th Australian Edition, JD Heydon, para [29090], Restifio v Bernstein (1995) 23 MVR 347 per Murray J at 353-354 and R v Mazzone (1985) 43 SASR 330.
Counsel for the prosecution sought to lead the evidence of Ms Stanley on the further or additional basis. Counsel submitted that Ms Stanley, who is qualified as a developmental educator, was qualified to give evidence of the capabilities and limitations of a person who had suffered the sort of brain injury suffered by the deceased.
In my opinion, Ms O’Connor and Ms Vonow are able to give evidence of the contact they had with the deceased, the fact that they assisted her in writing letters, and the fact that they had not seen the deceased write a letter like the Dear Deb or Dear Anthony letters and the respects in which those letters differed from the letters they had seen the deceased write. They had extensive contact with the deceased and they are familiar with her ability to communicate both verbally and in writing. I do not think it can be said that the members of the jury will be in as good a position to assess the issue as Ms O’Connor and Ms Vonow, and I think that the case relied on by counsel for the accused (Smith v The Queen (supra)) is distinguishable on this ground. Evidence from Ms O’Connor and Ms Vonow of the deceased’s ability to complete letters and her limitations in composing letters is, in my opinion, evidence based on the experience and observations of the witnesses and is admissible (Weal v Bottom (supra)). To the extent that evidence from Ms O’Connor and Ms Vonow that they had never seen the deceased write a letter like the Dear Deb and Dear Anthony letters and the respects in which those letters differed from the letters they have seen the deceased write is opinion evidence, I think it is within the class of admissible non-expert opinion evidence. It is not dissimilar to handwriting evidence given by non-experts.
I heard evidence from Ms Stanley on the voir dire. She never assisted the deceased to write letters. She had limited contact with the deceased from June 2000 to June 2001. In my opinion, Ms Stanley had insufficient contact with the deceased to qualify her to give evidence on whether the deceased was capable of writing the Dear Deb and Dear Anthony letters and there is no suggestion that Ms Stanley has undertaken such course of study as might justify the reception of the evidence.
Evidence of the letters sent to Ms Williams is relevant and admissible as is evidence of Ms O’Connor and Ms Vonow along the lines I have set out above.
2. Evidence that the accused had a certain degree of control and dominance over the deceased.
The prosecution proposes to lead evidence from a number of witnesses to the effect that the accused on occasions would “talk over” the deceased, would dominate a conversation involving her and a third party, and would dominate or overwhelm the deceased. The accused objects to this evidence on three grounds, namely, the evidence is irrelevant, a number of statements are impermissible expressions of opinion, and the evidence ought to be excluded on the ground that it is more prejudicial than probative.
I agree with counsel for the prosecution that the evidence is relevant on the following grounds:
(1)    it is relevant in that it explains, or tends to explain, why the accused in an apparently loving relationship with the deceased would choose at that point in time to kill the deceased, or put slightly differently, it tends to negate the suggestion that might otherwise arise that the relationship between the accused and the deceased was a loving compassionate relationship and that it was unlikely the accused would kill the deceased;
(2)    it is relevant to motive in that it shows, or tends to show, how the accused manipulated his way into the deceased’s life and, in particular, into involvement in her financial affairs;
(3)    it is relevant to whether the accused could exercise any control over the deceased in terms of the latter taking drugs or writing what might otherwise be seen as “suicide” notes;
(4)    it is relevant to the jury’s assessment of the accused’s version of events on 11 March 2003 as revealed in his interview with police, and, in particular, his statement that the deceased telephoned him at 12.38 pm and told him that she was going to Iron Knob for a few days to stay with friends.
As to the second and third grounds of objection, counsel for the prosecution made it clear that she would not attempt to lead any evidence in the nature of opinion evidence, and that she would elicit as far as possible details in terms of the time and place of the events which are the subject of the relevant witness’ evidence. Her submissions are set out in transcript (pp.80-87) and my rulings on particular statements are also in the transcript (pp.162-166). In view of counsel’s concessions and my rulings I do not think the evidence is in the nature of opinion evidence and that ground of objection fails. Nor is the evidence, which is relevant evidence, more prejudicial than probative in the sense explained by King CJ in R v Duke (supra) at 47 - 48, and I would not exclude the evidence on that ground.
3. Evidence of Mr Kym Larcombe concerning remarks made to him by the accused about Ms Angela Bell.
The objection to this evidence is not pursued by the accused.
4. Evidence of opinions of various witnesses as to whether the deceased would be likely to stay away from home without the accused.
The prosecution does not propose to lead the evidence identified in paragraph 4 of the Notice and there is no need for me to rule on this objection.
6. Evidence of letters found in the accused’s house at 59 Galpin Street, Whyalla.
Before he moved into the deceased’s house at 8 Ralph Street, Whyalla, the accused lived in a Housing Trust house at 59 Galpin Street, Whyalla. After the deceased had been killed, a number of letters, apparently written by the accused, were found in the roof cavity at 59 Galpin Street, Whyalla. The letters are written to various people and they suggest that the accused is contemplating suicide. They are undated, but from their contents appear to have been written before the accused commenced his relationship with the deceased in May/June 1999. One letter is to his previous partner, Ms Elaina Hull. The police apprehension reports show that in November 1994, the accused was arrested on a charge of raping Ms Hull. Although I do not have the precise details, the accused was not convicted of that offence. Another of the letters found in the roof cavity is to a police officer at the Whyalla Police Station, and appears to relate to complaints made to the police about the accused by Ms Hull.
Counsel for the accused submits that evidence about the letters found at 59 Galpin Street, Whyalla, is inadmissible because it is irrelevant. Counsel for the prosecution submits that the evidence is relevant because it supports the prosecution case that the accused wrote the letters sent to Ms Williams. She points to the tone of the letters, and the fact that they contain a series of complaints to persons in official or semi-official positions. She submits that the letters sent to Ms Williams also exhibit those features.

In my opinion, evidence of the letters is irrelevant and therefore is inadmissible. I do not think they support the conclusion that the accused wrote the letters sent to Ms Williams. They appear to have been written some years before the deceased was killed, and I do not think the features of the letters which counsel for the prosecution identified support the conclusion for which she contends. Even if I am wrong in that conclusion, I would exercise my discretion to exclude the evidence as being more prejudicial than probative. At best, evidence of the letters is of marginal relevance, and yet they have the potential to open up a whole series of collateral issues about the accused’s relationship with Ms Hull some years before the deceased was killed, including evidence that might be quite prejudicial to the accused.
I mention that counsel for the prosecution made an application towards the end of the prosecution case for me to reconsider this ruling. I did reconsider my ruling, but for the reasons set out above decided not to change it.
7. Evidence of observations by witnesses as to the apparent mood of the accused at a party on 8 March 2003.
The objection to this evidence is not pursued by the accused.
8. Evidence of Ms Elizabeth Boyle of an argument between the accused and the deceased in the car park of the Nicolson Child Care Centre.
The prosecution seeks to lead evidence from Ms Elizabeth Boyle of an argument she observed between the accused and the deceased. Ms Boyle is unable to say when the argument took place. She states that it was some time in 2002, but she is unable to be any more precise.
The accused submits that the evidence is irrelevant and therefore is inadmissible. Counsel for the accused referred to Wilson v The Queen (1970) 123 CLR 334, and in particular, the following passage in the reasons for judgment of Barwick CJ at 339:
“It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn. Here, there is no question of the remoteness in point of time of the occasions of which evidence of quarrelling is tendered and the time of the act charged, as was the case in Reg. v Tsingopoulos. Here the evidence was of quarrelling and bad relationship over a considerable period of time stretching up to the time of the death of the deceased. In my opinion, the evidence of the relations which had developed between the applicant and his wife was admissible”.
Evidence of arguments closer to the time the deceased was killed, or evidence of repeated arguments about a relevant topic, such as the motive alleged by the prosecution in this case (i.e., financial gain), is evidence from which a relevant inference may logically and reasonably be drawn. However, with some hesitation, I do not think that this can be said of a single instance which may have occurred a year or more before the deceased was killed. In addition, the subject matter of the argument is not known.
In my opinion, the evidence is irrelevant and therefore is inadmissible.
9. Evidence of Mr P Glicinski of the telephone conversation between the accused and Mr Paul Lee.
The prosecution does not propose to lead this evidence subject to the defence case. No further application to lead the evidence was made by the prosecution, and in those circumstances, there is no need for me to rule on this objection.
10. Evidence of the opinions of witnesses as to the accused’s attitude to money and the connection between money and the accused’s relationship with the deceased.
Counsel for the prosecution said that she will not seek to lead any opinion evidence.
I delivered rulings in relation to particular statements and those rulings are recorded in the transcript (pp.168-170). Those rulings reflect an attempt by me to remove any expression of opinion from the statements. Statements of what a witness saw or heard on this topic are relevant in view of the prosecution’s contention that the accused’s motive in killing the deceased was financial gain.
11. Evidence of an alleged sexual episode between the accused and Ms Josephine Schafer.
I reserved my ruling on this evidence. Ultimately, it was not necessary for me to deliver a ruling as the prosecution did not seek to call this evidence.
12. Evidence of Mr David Kilpatrick and Mr Ian Kilpatrick of arguments they overheard between the accused and the deceased.
Mr David Kilpatrick, his wife and their son, Mr Ian Kilpatrick, live at 6 Ralph Street, Whyalla. Mr David Kilpatrick will say that he heard arguments between the accused and the deceased, including arguments about the contents of the deceased’s will, over a period of time starting in late 2000 and ending two or three months before the deceased’s death. He heard the deceased say words to the effect of “You only want to be in the will”.
Mr Ian Kilpatrick is 18 years of age and he also heard arguments between the accused and the deceased including arguments about the deceased’s will. Towards the end of 2001, most of the arguments concerned the deceased’s will. Mr Ian Kilpatrick will say that the arguments became more irregular about six months before the deceased’s death. Both Mr David Kilpatrick and Mr Ian Kilpatrick will say the arguments were very loud and volatile.
The accused submits that the evidence is irrelevant and therefore is inadmissible. In the alternative, he submits that I should exclude the evidence on the ground that it is more prejudicial than probative.
On balance, I consider that the evidence is relevant and that I should not exclude it on the basis that it is more prejudicial than probative. The frequency of the arguments, the fact that they were loud and volatile and the fact that a number of them concerned the contents of the deceased’s will means, I think, that they are probative of the prosecution case that the accused killed the deceased and that his motive in doing so was financial gain. I do not think the evidence is more prejudicial than probative in the sense explained by King CJ in R v Duke (supra) at 47 - 48.
The evidence under this head is admissible and I decline to exclude it.
13. Evidence of Ms Karen O’Connor as to the accused sleeping with another woman “at Lynn’s house” and wanting to sleep with Lynn and Elaina.
The prosecution does not propose to lead this evidence and there is no need for me to rule on this objection.

[2004] SASC 3

15 January 2004