R v Fesus (No 5)

[2015] NSWSC 1973

Supreme Court

New South Wales

Medium Neutral Citation:	R v Fesus (No 5) [2015] NSWSC 1973
Hearing dates:	17 November 2015
Date of orders:	17 November 2015
Decision date:	17 November 2015
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	The evidence is rejected.
Catchwords:	CRIMINAL LAW – EVIDENCE – admission to witness by deceased that she had been raped – admissibility – probative value of the evidence
Category:	Procedural rulings
Parties:	Regina Steve Frank Fesus
Representation:	Counsel: J Crespo (Crown) N Carroll (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Nyman Gibson Miralis (Accused)
File Number(s):	2013/207336
Publication restriction:	Restricted to the parties pending finalisation of proceedings

EX TEMPORE Judgment

1. The accused makes application to lead evidence from a witness who is currently in the witness box, Kerry Smith, as to a comment Mrs Fesus is said to have made to the witness at some time, a time clearly established on the evidence.

2. Tendered on the issue is Voir Dire Exhibit N, two pages from a record of interview conducted with the police and the witness Kerry Smith on 14 December 2000. Those two pages, marked 13 and 14 of the transcript of the interview, go to discussions between the witness and the deceased at some undetermined stage prior to the death of Jodie Fesus connected with sexual activity between the deceased and other persons. The accused seeks to lead evidence that, in the words of the witness, the deceased gave an account of having been raped. The account given by the witness is in the following terms:

“It’s like that was really weird like and then she was talking about being raped by - I can’t remember, I’m not a hundred per cent sure if she said her father or her mother’s boyfriend. She’s been raped by one of them. It’s like yeah, okay, because I remember her and Steve did go through, not a rough patch, but Jodie just got all emotional and Steve’s like, I don’t know what’s wrong with her.”

3. The timing has been raised as an issue, in terms of when that conversation between the deceased and the witness may have occurred. There is nothing in the document which is capable of establishing a time frame, but the latter portion of the comment of the interview that I have just read, that is, that the witness remembers the comment about the deceased saying she had been raped by her father or her mother’s boyfriend, as happening in the context, according to the witness, of the deceased and Steve, the accused, going through a rough patch or something similar to a rough patch.

4. That would suggest that this rape, whoever may have been involved, and if it occurred at all, occurred after the deceased had met the accused.

5. The evidence before the Court touching on the subject of a sexual assault of the deceased relates to a sexual assault alleged by the deceased against her father, Roland Smith. That assault is said to have occurred when the deceased was in her young teenage years, and the complaint was made, as I recollect it, without having checked the precise date, in September 1994. Within a month of it having been made by the deceased, it was withdrawn.

6. The Crown has led evidence to rebut the suggestion apparently to be made by the accused that Roland Smith may be the real killer of the deceased. It has led evidence that the complaint was made in the context of the deceased seeking to obtain a payment relating to staying away from home as a youth or a child, and that payment having been denied. There is evidence from the deceased’s sister, Belinda Wright, to the effect that her sister, the deceased, subsequent to making the complaint of sexual assault by her father, told Belinda Wright that the complaint had been false.

7. The evidence that the accused seeks to adduce from Kerry Smith is nebulous to say the least. It does not establish with any precision who it is that was said to have sexually assaulted the deceased. It does not establish with any precision when this sexual assault is alleged to have taken place, although, as I say, it is open to conclude on the basis of what the witness said to the police, that such sexual assault as has been referred to occurred during the time of the deceased’s and the accused’s relationship, that is, well after the allegations relevant to the deceased’s father.

8. The nebulous nature of the conversation militates against its admission into evidence. It is difficult to see what the jury could be asked to make of a comment to a witness who so far in evidence has demonstrated herself to have a particularly poor memory of these events, when the witness is not able to remember the terms of the conversation and is not able to identify indeed with any precision whatsoever the person said to have been accused of the sexual assault.

9. Ms Carroll submits that the evidence is important because it establishes that persons outside of the Smith family had been told by the deceased of the sexual assault of her father. I infer from what has been said that it is suggested that the evidence of Kerry Smith would provide some foundation for the jury to conclude that Roland Smith had indeed sexually assaulted his daughter and that, therefore, he had a motive to kill her, with the suggestion that Mr Smith may have threatened his daughter with death on some occasion, more able to be believed.

10. I should add at that point that there is no evidence and, indeed, it is readily conceded there will not be any evidence that Mr Smith was in any way aware of the comment from his daughter to the witness Kerry Smith. In that sense, it can have no impact on Mr Smith’s understanding of his daughter’s conduct and upon any desire on his part for revenge or perhaps to silence her.

11. The evidence, to my mind, is not capable of doing anything to support the truth of the allegations made by Jodie Smith, and even if that was the case, the truth of the allegations themselves is largely peripheral. It is Mr Smith’s knowledge of the allegation and his wish to either retaliate or silence his daughter as a consequence, that is or could be of significance. This evidence can say nothing about that. What it can do, though, is to unfairly open up an allegation against the deceased’s mother’s boyfriend in circumstances where the accused in his interviews with police had referred to the deceased’s mother’s boyfriend, who I infer to be Mr Greg Kotvojs, as a person to whom the person should look for the real murderer. In that context, this comment can do nothing more than open up what I think everyone would agree is a red herring.

12. As vague as the evidence is, it does not satisfy even a basic test of probative value, and, accordingly, I reject it.

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Decision last updated: 19 September 2024