R v King
[2007] VSC 581
•26 November 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1631 of 2007
| THE QUEEN | |
| v | |
| GRAEME KING | Accused |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21-23,26-30 November and 3-7, 10-14 December 2007 | |
DATE OF RULING: | 26 November 2007 | |
CASE MAY BE CITED AS: | R v King | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 581 | |
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Criminal law – Circumstantial murder case – Admissibility of evidence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman SC | Office of Public Prosecutions |
| For the Accused | Mr H. Mason with Mr T. Vriends | Faram Ritchie Davies Lawyers |
HIS HONOUR:
I have concluded that the evidence generally of what the deceased said about the state of her marriage will be admissible in the following circumstances, beginning with what is said by Jason King at p.478 of the depositional material, the third full paragraph on that page:
“Sunday morning we just mucked around the farm. Everyone was at home. I think it was about 3 or 4 o’clock in the afternoon. Mum was in the laundry doing the washing and I went in to speak with her. She then told me that dad was having an affair with Pam Malcolm. She said she had enough of dad and wanted to leave. The money she was getting from the car accident was going to be her nest egg and help her start her life over with Nicole. She was still hesitant because of Peter and John but knew they wouldn’t leave. I told her that if she wanted to leave she should just do it. She eventually convinced herself to leave dad. She said she would leave by the end of the week and move in with her father. She was upset. I don’t think from the way she was talking she had told dad anything about what she intended to do. I know that dad asked about the money from the settlement on numerous occasions and he wanted the money.
I also told mum during this conversation that if she wanted, and I would make it easier for her to decide to leave, that I would move into her father’s house as well to be with her and support her. She was very happy with this idea. It was arranged that I would speak to her again on Tuesday during our phone call about any other details that needed to be worked out. We left it at that as we didn’t want anyone else to hear us. We both also knew that we would be able to talk quite freely on the phone on Tuesday as nobody would listen to our conversation.
Monday we just stayed around the farm and did some chores around the place. At about 2 or 3 o’clock Luke and I left to return to Melbourne. We didn’t leave on Sunday as we both had Monday off as a rostered day off. When we left mum walked out to the car and spoke at the driver’s door. We said our goodbyes and again I said to her I would speak to her tomorrow, being Tuesday, and she said, ‘Yes’. On the Monday she was still doing the washing. It wasn’t raining on Monday.”
And later on:
“On Tuesday the 25th of June 1991 I started work at 7.30 a.m. It was a normal workday. Sometime between 12 and 12.15 that day I rang home, being the farm, and the phone rang out. I rang a second time at 12.45 but again the phone rang out.”
At about 3 o'clock that day he was informed of his mother's death.
The relevance of that evidence is that it goes to the state of mind of the deceased 48 hours before her death, a state of mind that included the following matters:
(1)That she had determined within the week to leave her husband.
(2)That she could support herself with the use of the funds that she had received as the result of the motor car accident.
They are the principal matters that it would go to.
The law has been set out in a number of places. It is usefully summarised by Gleeson CJ in 1993 when he was then Chief Justice of New South Wales in the case of R v. Frawley[1] when, going through the list of matters of whether matters will be hearsay, said the following:
“(2) Evidence of an out‑of‑court statement by a person may be admissible without any question of hearsay arising where the fact that the statement was made is itself relevant to a fact in issue. Thus a statement made by a deceased person may form part of the circumstances surrounding the death of the deceased from which an inference as to the relevant matter may be drawn. On that ground evidence of the fact that the statement was made may be admissible without there being any question of using the contents of the statement testimonially.
In Ratten a telephone call made by the deceased shortly before her death had significance in a variety of ways. It proved that the deceased was still alive at a critical time and it demonstrated a state of fear on her part which was relevant to the circumstances in which she met her death, the accused claiming he had accidentally shot her.
Similarly in Walton, "The fact that the deceased had said certain things in a telephone conversation not long before she died was relevant in a number of ways to matters in issue at the trial."”
[1](1993) 69 A Crim R 211 at 222.
Further, it was said by the majority of the High Court in Walton v The Queen[2] in the joint judgment of Wilson, Dawson and Toohey JJ:
“When a person’s state of mind is relevant, evidence tending to prove that fact is admissible. That evidence may, of course, take the form of conduct on the part of a person whose state of mind is in question from which the state of mind might be inferred but it might also take the form of statements made by the person or by another from which a similar inference might be made.”
[2](1989) 166 CLR 283 at 300.
In the circumstances of this case the circumstance, or as part of the circumstantial evidence, that the deceased had decided in her own mind that she would leave is a circumstance from which, in conjunction other evidence, the jury could draw inferences going to the circumstances under which she met her death.
That evidence is important in the sense that it is very proximate to the time at which she met her death. The question then arises as to whether other utterances made by the deceased going to the nature of her relationship and other matters observed by others going to the nature of the relationship may be admitted. It seems to me likely to be an issue in this trial that the deceased had decided to leave the accused as at Sunday, 23 June 1991. Evidence that tends to support her coming to that conclusion will itself be admissible as going to a fact in issue. So the fact that the deceased over a period of time had complained to others about the state of the relationship will be admissible as making it more likely than not that is what she communicated to her son on 23 June 1991.
Separately, it seems to me that two pieces of conduct of which evidence is available go to the same issue as to whether or not she had made such a determination. In the evidence of Nicole Ryan of her mother coming to sleep with her, this is evidence from which the jury could draw certain conclusions as to the deteriorating nature of the relationship. Equally, evidence of the fact that the deceased had left home and on probably more than one occasion, gone to live with her father but had returned when the accused had convinced her to return is material going to whether or not in relation to those two particular incidents the accused man had knowledge of some aspects of deterioration of the relationship but, more importantly, going to the issue as to whether it was more likely or not that the deceased had reached the decision to leave as at 23 June.
The evidence of the deceased leaving and going to stay with her father is more readily to be found in the statement of Judy Anne Hill at p.672 of the depositions than anywhere else.
That leaves a separate consideration, the utterances that have been made that if I deal with the material in the order in which it has been provided to me, and I will cause the folder that has been provided and marked, together with all the written submissions to be placed on the court file so that they will form part of this ruling.
Dealing first of all with the evidence of Sharyn Lee Canobie, dealing with what appears at p.527, it seems to me that the passage on that page would, of itself, be too general to throw any particular light on the relationship. However, the passage at p.528 beginning, “over the time I’ve known Kaye at certain times that she had suffered certain injuries”, the fact that that culminated in a conversation that took place in the last few weeks before she died is relevant both to the question of relationship in its broader sense but more relevant to whether or not she determined that she would leave the accused, and the matters about the relationship that she found to be unsatisfactory as going to that. The question then of the observation of the injuries over the period of time seems to be so integrally connected as to be admissible on the same basis.
I have dealt with the witness Judy Ann Hill.
In relation to Pamela Malcolm the conversation that she had with the deceased going to the question of whether she would leave her husband is admissible on the basis of going to her final decision.
On the same page the impugned passage dealing with the question of the later sexual relationship with the accused against any present assertion that there was a sexual relationship during the course of the marriage, and I understand that is not pressed by the Crown, the later commencement of a sexual relationship does not seem to me to bear any relevance to any matter that is in issue in the trial.
In dealing with the evidence of Pamela Burgmann, on the basis that I have ruled some of the material as admissible, "I recall one time speaking to her when she asked me where I got the courage to leave. She wished she had the courage to do the same", would be potentially admissible but is so indefinite in time, although it is probably in 1990, but it is too indefinite in time it seems to me at the moment to be capable of adding anything. And the other remark about complaining that the accused was a sex maniac seems to me to suffer from the same vice. That is also at p.898. On p.899, "told me over this period she suspected Graeme of having an affair but never said who", is relevant and admissible, not as going to the fact but forming part of the basis on which the deceased had said to her son that she was planning to leave. The truth of that allegation having nothing to do with her state of mind.
The single remark that is referred to in that statement at p.910 seems a bit remote to me and should not form part of the evidence.
On p.931 in the evidence of Heather Margaret Hosie, even though it is talking about events that are 12 months before her death, it is relevant to the issue of when she first planned that she might or talk about leaving her husband. So that will be admitted.
In relation to both the passage from Ms Hill and the passage from Ms Hosie, that before the material is actually led, it would be as well to make sure what the source of their knowledge is; that is, were they told by the deceased or by other parties to ascertain whether it is entirely hearsay.
That material is covered in any event in the statement from Jason King who is the next witness who falls to be considered at p.476. His observations of the domestic situation are admissible going ultimately to the issue of why it was his mother determined that she would leave. The passage at the bottom of p.476, it is not clear whether that passage refers to some time other than what occurred on Sunday, that is at the very bottom of p.476, but it is a matter that would bear clarification. On the basis that I have already ruled it will be admissible and I have already ruled in relation to the passage at p.478 and already ruled in relation to Nicole Ann Ryan.
In relation to the evidence of Henry Charles Wells, anything he observed he can give evidence about but his opinion is not admissible.
In relation to the statement of Dorothy Cook, in the present form that is integrally bound up with a surmise of what might or might not have been told to the accused man, it is not admissible. That in relation to the passage on p.992, the passage of her being not happy in the marriage, "hadn't been happy for months. I don't think she knew how to fix it," is irrelevant to the question of her ultimate determination. It does not seem to me that a generic comment of the accused being very verbally abusive to her and the boys is capable of being admitted.
In relation to the passage on p. 991, even though it is conversations about the deceased talking about the possibility of an affair, it is bound up with what the accused man must have known or did not know or whatever. It seems to me when looked at as a whole that renders those passages inadmissible because the generic issue that might go to any probative issue in the way that I have found it is contained simply in the sentence at the top of p.992. In essence, the evidence of Mrs Cook will really be confined to what appears on the first line or the first sentence on p.992 as to that issue.
They are the matters dealing with relationship.
That leaves open the question of the financial records and finances. In relation to the question of the financial evidence, Mr Gannon purports to give evidence of his own knowledge. Such matters as form part of his memory are relevant and admissible. The real question that arises is whether or not he can be properly tested in the absence of the bank records being available. I am not satisfied that the disadvantage of the absence of the bank records is of such a quality as to render Mr Gannon's evidence inadmissible. Whether at the end of the day Mr Gannon's evidence will have enough certainty about it to go to the jury as being some sort of basis of motive is quite another matter.
For matters he is uncertain about, for instance, the question of mortgages and what mortgages there might have been, unless there is evidence on those matters they will not be capable of being used against the accused man as describing his financial circumstances but such matters as Mr Gannon remembers, he is capable of being tested. This case and cases like these will be distinguished from the question of the medical‑type cases in particular that deal with doctors who are being prosecuted in the absence of their own medical records which are capable of describing the treatment and particular treatment given to individual patients and they are the only true source of such material.
In cases such as the present, the existence or non‑existence of bank records is merely one of the sources from which financial material might be gleaned. In general, I do not regard the evidence as being so prejudicial that it warrants its exclusion or that it be of the nature of being so unfair as to a stay being given as to that part of the evidence. Indeed, as I understand the modern authorities, if I had concluded that the admission of the evidence would render the trial unfair, that would be a proper basis for the exclusion of the evidence. I do not regard the evidence as having that character so I will admit the evidence of Mr Gannon.
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CERTIFICATE
I certify that this and the 6 preceding pages are a true copy of the reasons for Ruling of Coghlan of the Supreme Court of Victoria delivered on 26 November 2007.
DATED this thirteenth day of November 2008.
Associate
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