R v King (Ruling No 2)
[2008] VSC 482
•13 November 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1517 of 2006
| THE QUEEN |
| v |
| GRAEME KING |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2008 | |
DATE OF RULING: | 13 November 2008 | |
CASE MAY BE CITED AS: | R v King (Ruling No. 2) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 482 | |
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Murder - preliminary application to exclude relationship evidence – husband and wife – application allowed in part with respect to matter insufficiently proximate and other matters occasioning collateral prejudice.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Office of Public Prosecutions |
| For the Accused | Mr H T Mason with Mr T Vriends | Faram Ritchie Davies Lawyers |
HIS HONOUR:
As my previous ruling indicates, the prosecution case in this matter is one of a combination of circumstantial evidence.
The final element of that case is that the accused stated to an independent witness in the year 2000, that he hated his wife and had killed her.
The Crown case can thus be regarded as crystallising in the proposition that this confessional statement should be accepted beyond reasonable doubt as true.
The accused takes issue both with the proposition that he killed his wife and the proposition that he had a bad relationship with his wife.
He has maintained a consistent position with respect to both propositions both in a record of interview conducted in 2005 and in evidence given at the last trial.
Mr Mason seeks to exclude from evidence a series of statements by witnesses as to the pre‑existing relationship between the accused and the deceased prior to her death.
Those statements were the subject of detailed ruling by Coghlan J in the previous trial. The matters which remain in issue, arise despite the excision of a substantial number of other matters both voluntarily by the Crown and as a result of his Honour’s ruling.
In my view his Honour correctly identified the underlying evidentiary principle by reference to the authoritative statements of Gleeson CJ in Frawley v R[1] and the joint judgment in the High Court in Walton v The Queen[2].
[1](1993) 69 A Crim R 208 at 222.
[2](1989) 166 CLR 283 at 300.
Evidence may be admissible as to the statements of a deceased person in order to demonstrate the state of mind of that person at a relevant time. Such evidence is not to be treated as hearsay evidence admitted as to the truth of the statements.
The starting point of the enquiry as to whether such evidence should be admitted in a particular case, must be to ascertain the purpose for which the evidence is to be adduced.[3]
[3]Frawley v R (1993) 69 A Crim R 208 at 220.
In the present case evidence of statements by the deceased demonstrating her state of mind, constitutes evidence probative of:
(a) the background relationship between the accused and his wife;
(b) the breakdown of that relationship and associated heated arguments; and
(c) the wife’s intention to leave her husband on the eve of her death.
In turn these matters go in my view to:
(a) the context in which the circumstantial evidence as a whole falls to be addressed; and
(b) the context in which the truthfulness of the accused’s alleged confessional statement as to motive falls to be addressed.
This is so even when there is no evidence the deceased’s intention to leave was communicated to the accused.
The evidence is probative of circumstances (namely the deceased’s state of mind immediately prior to her death and the degree of disagreement between the parties) bearing on the question:
Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust?[4]
[4]Menzies J in Wilson v The Queen (1970) 123 CLR 334 at 344.
As the cases of Wilson and Ratten[5] demonstrate, such evidence is logically relevant in a case such as the present, where the jury is in effect confronted with alternative explanations of the circumstances as a whole, namely murder or accident.
[5][1972] AC 379 at 389.
In R v Anderson[6] Winneke P said at [30]:
In my view his Honour was correct to have admitted the evidence which he did on the basis which he did. In cases of this kind, where the parties have been living together for a substantial period of time preceding the events in question, courts have traditionally admitted evidence of the pre-existing relationship between them provided that it has a bearing on the facts in issue. This is particularly so where the evidence is relevant to the state of mind of the accused at the time when the acts alleged occurred. Thus such evidence has been admitted to prove motive or to establish the intent of the accused, or to negative a defence of accident, self-defence or provocation. Such evidence can be admitted either for or against the interests of the accused…
[6](2001) 1 VR 1.
The evidence in issue includes that of Jason King at page 478 of the depositions, quoted at paragraph 1 of the ruling of Coghlan J of 26 November 2007. That evidence is to the effect that on the Sunday prior to the Tuesday of her death, the deceased told her son in the laundry at the farmhouse, that she would leave her husband by the end of the week and move in with her father. She had had enough of the accused and wanted to leave. The other passages of evidence from other witnesses are put forward as tending to confirm the likelihood of the truth of this evidence, and that the deceased’s statements truly reflected her state of mind.
Likewise evidence of behaviour consistent with stress in the marriage is also admissible for the same reason (Nicole Ryan, Judy Anne Hill). Mr Mason has advanced detailed criticisms of this evidence but save in the respects identified below, in the ultimate my view is that the matters put forward go essentially to questions of weight rather than admissibility.
Subject to two exceptions, in my view the evidence of each of the witnesses in issue, is of events sufficiently proximate to the deceased’s death to render it relevant to the questions I have identified. The exceptions are the evidence of Pam Burgman at 899 as to a conversation not fixed in time, and the evidence of Hill at 672 as to events not fixed in time.
Insofar as the question of proximity is otherwise concerned, I specifically reject the submission that evidence of Mr Wells as to conversations “from about six months before (she) died” is too general or remote. I further note the evidence of Ryan is as to events starting six to 12 months before her mother died. Pamela Malcolm gives evidence of conversations not long before the deceased’s death. Hill gives evidence of a conversation on the weekend preceding the deceased’s death. Cook gives evidence of conversations continuing up to the death of the deceased. Hosie gives evidence of conversations starting about 12 months before the deceased died.
I turn then to other aspects of the evidence of Canobie, Cook and Hosie.
The evidence of Canobie includes the following statement (made 14 years after the event):
Over the time I have known Kaye, at certain times I noticed that she had bruising on her arms and on one occasion she had a black eye. The bruises on her arms looked to me like finger marks where she had been grabbed and were on her upper arms. When I asked her about these bruises she just brushed it off and wouldn’t talk about it and said she must of bumped things. On some occasions I actually said to her that they looked like finger marks and she wouldn’t respond. I would say that I saw these bruises a few times a year. It again seemed to be more frequent in the last years of her life. Just before she died, it was in the last few weeks I asked her if Graeme was violent towards her, I think my words were, “He’s not bashing you, is he?” She didn’t admit it but just said, “Sometimes I am scared Sharyn, I don’t know what to do.” I said to her that she couldn’t live like this and she just repeated, “I don’t know what to do.” It was also at this time that Kaye told me that Graeme demanded sex every night of the week. Kaye said she hated this and didn’t want to do it but he would make her do it. I told her that no means no and she shouldn’t do it if she doesn’t want to.
Mr Brown has properly conceded that what amounts to allegations of rape should be deleted from the evidence of Canobie. He also accepts that a number of other incidental restrictions should be placed upon her evidence.
Nevertheless it seems to me that so much of the above evidence of Canobie which remains in issue, should be excluded as having a prejudicial effect disproportionate to its probative value.
First the observations as to bruising are not related in any way back to the accused. Secondly there is no evidence of like observations from other witnesses (including the daughter who says that the deceased regularly slept in her bed) during the period leading up to the deceased’s death.
Thirdly the question “He’s not bashing you, is he?” contains an imputation that the accused was bashing his wife. In turn the answer “Sometimes I am scared Sharyn, I don’t know what to do”, is one that encourages speculation, but is inherently uncertain in meaning.
Fourthly both the suggestion of bashing and sexual demands referred to by the witness, are highly prejudicial to the accused, and the evidence carries a real risk of being treated as hearsay evidence of the fact rather than as indicative of the deceased’s state of mind, whatever judicial directions may be given in this regard.
Fifthly there is other evidence without these defects, of the relevant proposition which the Crown seeks to open.
· Evidence from a number of friends that Kaye King was not happy in her marriage. She discussed the possibility of counselling and said she did not know how to fix things. Mrs King suspected the accused was having an affair with Pamela Malcolm. Mrs Malcolm denied that she was having an affair with the accused but Mrs King nonetheless suspected that her husband was having an affair.
Insofar as the evidence of Cook is concerned, that evidence should not extend beyond that ultimately contended for by Mr Brown.
Insofar as the evidence of Hosie is concerned, it should not include the last two sentences in the first paragraph at the top of 932 of the depositions.
And I so rule.
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CERTIFICATE
I certify that this and the 5 preceding pages are a true copy of the reasons for Ruling of the Hon. Justice Osborn of the Supreme Court of Victoria delivered on 13 November 2008.
DATED this third day of December 2008.
Associate
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