R v Lubik

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 028 of 2010

THE QUEEN
v
PETER LUBIK	Accused

---

JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATES OF HEARING:	30 September, 4, 5, 7, 8 and 11 October 2010
DATE OF RULING:	15 October 2010
CASE MAY BE CITED AS:	R v Lubik
MEDIUM NEUTRAL CITATION:	[2010] VSC 465

---

CRIMINAL LAW – evidence – murder trial - preliminary hearing on admission of hearsay and relationship evidence – accused charged with murdering his wife – accused claims wife killed by accident or in self defence – whether relationship evidence admissible of aggressive and hostile conduct against the deceased by the accused over two and half years before her death – whether hearsay evidence should be admitted under s 65(2) of the Evidence Act 2008 – ruling allowing admission of relationship and hearsay evidence

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.A. Brown with Ms D Karamicov	Craig Hyland, solicitor for the DPP
For the Defendant	Mr W.B. Lindner	Lewenberg & Lewenberg

HIS HONOUR:

INTRODUCTION AND SUMMARY

Peter Lubik is charged with the murder of Barbara Lubik at Noble Park, Victoria on 25 January 2009. The Crown has given notice of tendency evidence under s 97(1) of the Evidence Act 2008 (“the Act”) and a notice of hearsay evidence under s 67 of the Act. The Crown no longer wishes to proceed with the notice of tendency.

This ruling determines issues as to the admissibility of the hearsay evidence under s 199 of the Criminal Procedure Act 2009. Although not required by the Act, the Crown has given notice that it intends to adduce “relationship” evidence and in particular evidence of the prior aggressive and hostile conduct by the accused towards the deceased and evidence of the fear of the accused by the deceased.

The trial has not commenced. The summary of the Crown opening gives notice that the Crown will allege that the accused and the deceased were husband and wife residing at 8 Julius Crescent, Noble Park. The Crown will allege that on 25 January 2009, the accused and the deceased went shopping in the Dandenong area with Elizbieta Wijas, a friend of the deceased’s. The accused became separated from the group. Wijas drove the deceased home about 3.00pm. Subsequently the accused arrived home. The Crown alleges the accused initiated a physical confrontation between the accused and the deceased in the dining room area. As a result of this confrontation, the deceased received one stab wound to the throat which resulted in her death. The Crown alleges the wound was inflicted by the accused with the intention of killing or causing really serious injury to the deceased.

Counsel for the accused has indicated that anticipated defences at the trial are state of mind, accident and self-defence. The Crown’s summary of opening refers to a conversation the accused is alleged to have had with a security guard who was a friend of his, Mark Cieslak. The summary states:

The accused said “what have I done?” and “what was I supposed to do?” The accused told Cieslak that the deceased had become angry when he told her that he was going to the casino and grabbed a knife from the kitchen. When he tried to take the knife from her a struggle ensued. He then claimed that she slipped and cut her throat.

Mr Lindner, counsel for the accused, has not formally outlined the accused’s defence to the charge. In his response to the summary of the Crown’s opening of 5 July 2010, the accused says that no issue is taken with the conversation recounted by Mr Cieslak as summarised in the summary of the Crown opening.

For present purposes, therefore, I will give a ruling on the admissibility of evidence on the basis that the defences of state of mind, accident and self-defence will be raised relying on the version of events given by the accused to Mr Cieslak.

The Crown seeks to tender evidence of the relationship between the accused and the deceased from shortly prior to their marriage on 15 July 2006 until the day of her death on 25 January 2009. The Crown contends this evidence is relevant to establishing the animosity and antipathy the accused felt towards the deceased and is therefore relevant to establishing that the accused intended to kill or cause really serious injury to the deceased.

The Crown says the relationship evidence is also relevant to rebut the accused’s claim that he was acting in self defence because the accused approached him with a knife.

This evidence includes the evidence of witnesses who personally witnessed aggressive and hostile conduct of the accused towards the deceased including one instance where the accused grabbed the deceased’s hair in a hostile manner and pushed her around and another where friends observed bruises on the deceased that she explained were caused by the accused. Witnesses were informed of and observed occasions when the deceased fled from her home to avoid the aggressive and hostile conduct of the accused. The witnesses are Danuta Nowakowski, George Pawlak, Mark Cieslak, Elizabieta Wijas, Halina Kowalczyk, Marie Laradis, Christian Lazar, and police officers Hunter, Kusnierz, Toomey and Stone.

There are approximately thirty three representations the subject of the hearsay notice. Some the Crown no longer presses. Most of them overlap and are part of the relationship evidence sought to be tendered. Some of the relationship incidents that different witnesses attest to may on closer examination be the same incident. Apart from one that took place before the accused and the deceased were married, the relationship incidents and the hearsay representations occurred over the period from the marriage of the accused and the deceased on 15 July 2006 to 4 November 2008 some two months before the deceased’s death.

For the reasons given below, I rule that the evidence of the incident before the marriage should not be admitted. It is too remote and even if relevant I would exclude it as its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused.

As to the balance of the evidence sought to be led, for the reasons given below I rule that the evidence of the aggression and hostility displayed by the accused to the deceased during their marriage as outlined in the witnesses statements and the deceased’s fearful reaction to that conduct is relevant and admissible.

Insofar as the evidence consists of relevant hearsay evidence, I find that it may be led under s 65(2) (b) or (c) of the Act, or if the evidence is a contemporaneous representation about the deceased’s fear of the deceased, it may be led under s 66A of the Act. I find that the evidence should otherwise not be excluded under s 137 of the Act.

I find that:

· the incidents are not too remote to render them irrelevant or that their probative value is outweighed by prejudice to the accused

· the incidents do not involve injury and weapons does not deprive the evidence of relevance

· the fact that the incidents involved behaviour of the accused while affected by alcohol does not deprive the evidence of relevance

· the fact that the physical violence did not escalate during the marriage does not deprive the evidence of relevance

· the fact that the aggressive and hostile conduct of the accused may not have related to an argument over the accused’s gambling does not deprive the evidence of relevance

· the fact that on the day of her death the accused told Mrs Wijas that she was not scared of the accused any more does not deprive the evidence of prior aggressive and hostile conduct and the deceased’s reaction to it of relevance.

THE PROPOSED USE OF THE RELATIONSHIP EVIDENCE

The Crown tendered a document which expressly sets out the purposes for which it seeks to tender the relationship evidence as follows:

The prosecution’s primary case:

·    The accused initiated the confrontation with the deceased on 25 January 2009 by approaching her with a knife.
·    During the course of an argument between the accused and deceased, the accused intentionally stabbed the deceased with the knife.
·    The accused was not acting in self defence when he stabbed the deceased with the knife.

The defence case:

·    The deceased initiated the confrontation with the accused on 25 January 2009 by approaching him with a knife.
·    A struggle ensued between the deceased and accused whereby the accused acted in self defence.
·    During the course of the struggle, the deceased was accidentally stabbed in the throat with the knife.

Elements of murder:

·    The accused caused the death of the deceased on 25 January 2009.
·    The accused’s actions were conscious, voluntary and deliberate.
·    The accused intended to kill or cause really serious injury to the deceased.
·    In killing the deceased, the accused acted without lawful justification.

Facts in issue based on the defence case:

·    Voluntariness – that the accused actions were deliberate.
·    The accused’s state of mind – that the accused intended to kill the deceased or cause her really serious injury.
·    Lawful justification – that the accused acted in self defence.

The relevance of relationship evidence to the facts in issue:

Voluntariness
·    The accused contends that his actions were not deliberate but accidental as the deceased approached him with a knife and during the course of an argument with the deceased she slipped and sustained the fatal injury.
·    Relationship evidence is relevant to establish the deceased state of mind.
o   During the course of their relationship, the deceased was fearful of the accused.
§ She expressed her fear to friends
§ She ran away from the accused during arguments
§ She reported assaults on her

o Inference – if a person is fearful of another, they are unlikely to approach them with a knife.

The accused’s state of mind
·    The accused contends that he did not intentionally stab the deceased on 25 January 2009.
·    Relationship evidence is relevant to establish the accused’s state of mind
o   The accused bore animus to the deceased throughout their volatile relationship such that when intoxicated, the accused was physically violent and abusive towards the deceased.
§ The deceased told friends of occasions where the accused was physically violent towards her when intoxicated
§ Friends witnessed occasions when the accused was physically violent or abusive towards the deceased
§ Friends observed bruises on the deceased and she explained the accused had caused the bruises

o Inference – if a person bears animus towards another, that animus is relevant in considering whether that person formed an intention to kill or cause really serious injury to the other.

Lawful justification
· The accused contends that in acting in self defence, the deceased was accidentally stabbed to the neck.
o Relationship evidence is relevant to negative the accused’s claim that he was acting in self defence because the deceased approached him with a knife.
§ It will allow the jury to assess the deceased’s state of mind on 25 January 2009 and whether she would approach the accused with a knife.
§ This is especially relevant, given that the defence contend that the deceased was no longer scared of the accused anymore, as she told Elizabieta Wijas.

o A similar argument flows from the assessment of accidental actions under Voluntariness.

The permissible and impermissible use of relationship evidence:

· The jury may only use the relationship evidence as a background against which they can better evaluate and assess the evidence of conduct which occurred on 25 January 2009 in a realistic context, insofar as to allow the jury to determine what the states of mind of the accused and deceased were on 25 January 2009. (Anderson at [39] – [40]).
· The jury is not permitted to use the relationship evidence to reason that because the accused had previously exhibited physical violence and abuse on his wife, he is the sort of person who was more likely to have murdered her on 25 January 2009. (Anderson at [40], Gojanovic No. 2 at [105] – [106].)
RELEVANCE OF THE RELATIONSHIP EVIDENCE

Before considering whether or not to permit the adducing of the hearsay evidence it is necessary to consider whether evidence of the aggressive and hostile conduct of the accused towards the deceased and her fearful response to it is relevant.

The authorities establish that relationship evidence may be admissible to enable the jury to understand the relationship between the parties in this case and thus enable the jury to better evaluate the relevant issues in the case which include the respective intentions with which the parties had acted on the night in question and whether or not the deceased’s death was due to an accident or otherwise. The conduct of the accused towards his wife may be such from which the jury is able to infer that the accused bore enmity and antipathy towards the deceased. Such evidence is relevant to enable the jury to assess the probability of the existence of an intention by the accused to kill the or cause really serious injury to the deceased.

I have been referred to a great many cases dealing with relationship evidence. I shall only refer to a few which I think are sufficient to establish the relevant principles. Where a husband is accused of killing his wife and he claims the death was due to accident or self defence, it is well established that evidence is admissible of the troubled relationship between the parties from which a relevant inference can be logically and reasonably be drawn. In Wilson v R[1] the wife had been killed by the discharge of a shotgun sitting on a bale of hay on a trailer she was towing. The husband said the gun discharged by accident. Evidence was led that the husband and wife had a troubled relationship and that the wife was heard to say on two occasions to the husband that she knew he wanted to kill her. The High Court considered whether this evidence was admissible. Barwick CJ held it was and explained the basis of it being admitted as follows:[2]

If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance it is inadmissible. Of that kind was the evidence in R. v. Barbour. 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 was 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 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. (citations omitted)

[1](1970) 123 CLR 334.

[2]Ibid 339.

Menzies J said:[3]

It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence - which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue - to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were casually connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.

[3]Ibid 344.

Since Wilson v R there has been a string of cases on the issue of relationship evidence. A particularly good summary of the relevant authorities is by Heydon JA then sitting in the Court of Criminal Appeal in New South Wales (with whom Dowd and Bell JJ agreed) in R v Clark.[4] The judgment takes into account the relevant provisions of the Evidence Act 2008 which then applied in New South Wales under its relevant act. Among the many authorities he quoted from are two of particular relevance, R v Iuliano[5] and R v Hissey[6] as follows:

In R v Iuliano [1971] VR 412 at 416 Winneke CJ, Little and Gowans JJ said:
"It is not necessary that any particular incident related in evidence should, regarded singly, and of its own force, establish a relationship of enmity or distrust. It is sufficient if the incident related makes a contribution which is not insignificant or unsubstantial to a climate of antipathy. Of course, if the incident is isolated and at a considerable distance of time before the death, it may afford no evidence at all of relations between the parties at the time of the death which could have any bearing on motive or intention. If it is not too remote, and its existence along with other incidents or circumstances related in evidence tends to establish a climate of the kind referred to, the evidence of the incident is relevant. We think that the act of a wife in publicly charging a husband to his face with having done something to cause serious physical injury to her, calculated as it is to provoke in him feelings of irritation, animosity or indignation, and made in the setting of a quarrel, or what may fairly be regarded as such, may be regarded as making a real contribution to an atmosphere or climate of enmity or distrust. It is a fact tending to prove a fact which is itself relevant, namely, a relationship between the two which is explanatory of the conduct of the accused."
103 In R v Hissey (1973) 6 SASR 280 at 288-289, Bray CJ, Hogarth and Mitchell JJ held admissible evidence that the accused, who was charged with the murder of a woman with whom he had been living, had used and threatened physical violence towards her.
"Evidence of this nature is not to be led as evidence of bad character or of a tendency to use violence on the part of the appellant. Such evidence is admissible for the purpose mentioned by the learned trial Judge, namely that of showing the relationship existing between the appellant and the deceased: Wilson v The Queen. We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living. If evidence of this nature were to be excluded as being technically inadmissible, then equally it would be technically inadmissible for evidence to be tendered to the jury which might be favourable to an accused person, for example of a man having lived with his wife on terms of affection and harmony over a long period of years; and we think that such evidence would clearly be relevant and indeed important. When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime: R v Ball per Lord Atkinson; Wilson v The Queen per Barwick CJ. So here the evidence was admissible not only to prove malice aforethought, but also to prove that the appellant was responsible for the death of the deceased. The jury evidently declined to give effect to it for the former purpose, since they acquitted the appellant of murder, but they were at liberty to use it for the latter." (citations omitted)

[4][2001] NSWCCA 494.

[5][1971] VR 412 at 416 per Winneke CJ, Little and Gowans JJ.

[6](1973) 6 SASR 280 at 288-289.

In R v Clark the accused was found guilty of murdering a woman who had been living with the accused’s mother. Evidence was led that the deceased was scared of the accused and had told people she believed he was out to get her. Heydon JA explained the purposes for which evidence the relations between the accused and the deceased could be used as follows:

General approach to the impugned evidence
134 An issue thus arose whether the dealings and mutual attitudes of the appellant and the deceased were generally cordial or tense and violent. Though the evidence was not tendered by the Crown to prove motive or a particular intent, it had relevance independent of those issues. The relevance of the evidence arose in three ways.
135 First, to exclude all evidence of tension and violence but leave in only evidence of cordiality would be misleading. The evidence was relevant because it prevented the issues from being considered in a "vacuum" (Wilson v R per Menzies J). It avoided the jury having "quite an artificial picture": R v Peake per Millhouse J (Williams J concurring). It enabled presentation of the case "in an intelligible and real fashion": R v Garner per Sugerman J. The evidence was "the key to an assessment of the relationship between the [accused] and the [victim] and, as such, constituted part of the essential background against which the ... [accused's] evidence ... necessarily fell to be evaluated": B v R.
136 Secondly, the jury's task was to assess what happened on the drive which the appellant admitted from the start he had taken with the deceased. He went on it at a time when he had an opportunity to kill her. He went on it, according to him, for the purpose of discussing a matter of some distress and difficulty, namely the attempt to get the deceased to leave the house occupied by the appellant's mother. The issue was whether the drive ended in him killing her. It was material to consider whether the past dealings and mutual attitudes of the parties were such as to create a reasonable doubt in the appellant's favour or whether they were such as to increase the probability that a killing resulted.
137 The relationship was capable of casting light on whether the appellant killed the deceased, and, if he killed the deceased, what his mental state was: R v Hissey (1973) 6 SASR 280 at 289. The existence of a bad relationship increased the chance of a relaxation of normal inhibitions against killing. It thereby offered a potential explanation for any criminal conduct by the appellant. It established "an atmosphere which would render it less unlikely that the offence charged would have been committed in the circumstances which arose on the occasion of [the accused's drive with the victim], having regard to the past relationship of the principals": R v Garner per Maguire J.
138 As a motive, the Crown relied on the appellant's exasperation with the deceased because of his resentment over trouble caused to him by her failure to carry out postal deliveries properly, which caused complaints to be made to him even though he was not responsible for them, and frustration at the deceased's failure to leave the house of his mother, whom she was upsetting, whose friends had ceased to call in order to avoid meeting the deceased, and whose health, according to medical opinion, was being adversely affected. The deceased was frequently affected by alcohol and was disruptive, in the perception of the appellant. Even though the relationship evidence was not tendered as going directly to motive, an evaluation of the motive issue and an evaluation of the probabilities in relation to whether the appellant killed the deceased, after a sudden quarrel or otherwise, would be carried out less realistically if there were an exclusion of all evidence of the bad terms existing between the appellant and the deceased. Evidence of a hostile relationship would enable the jury to draw adverse inferences from the circumstantial evidence pointing to the appellant's guilt; evidence of a good relationship, foreshadowed by the appellant in his records of interview and actually given in the witness box, would cause them to hesitate in doing so.
139 Thirdly, the Crown was entitled to predict that the appellant would raise a particular version of his dealings with and attitudes to the deceased, and was entitled to endeavour to deal with it in its own case.
140 Thus the evidence was also relevant because it contradicted the appellant's own version of the relationship given to the police and thus amounted to an "anticipation of possible defences": R v Garner per Sugerman J. Similarly, in Plomp v R the High Court accepted the admissibility of evidence that despite a statement by a husband that "he and his wife were `very happily married', [he] was not on good terms with her and that he had on one occasion at least treated her with violence".
141 The evidence against the appellant was, apart from his confession to Mr Brown, entirely circumstantial: he made no direct admissions to the police and there was no direct witness of the crime. Where a case is entirely circumstantial, it is common for relationship to be considered as one of the circumstances. (citations omitted)

Reference has been made to the observations of Winneke P in R v Anderson.[7] In that case the accused admitted he had stabbed the deceased. He argued however that she had initially attacked him. Winneke P said:

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. It would be contrary to common sense, for example, to exclude evidence which pointed to an entirely harmonious and compatible relationship between the accused person and his wife or partner if such evidence was relevant to the defence of the accused person (Wilson v. R. per Barwick CJ). Likewise it would be contrary to reason and commonsense to exclude evidence of previous violent acts by the deceased towards the accused person, or others, if such conduct had a relevance to the issues at trial (see Re Knowles).

[7]At [30].

In R v Anderson, Winneke P emphasised that the relationship evidence also may go to specific issues in the case and not just the relationship between the accused and the deceased. He also distinguished between evidence of the relationship and propensity evidence. He said:

Evidence of the relationship between the parties has been admitted, not simply because it describes the relationship of the parties but because particular acts or statements occurring within that relationship are relevant to the issues arising in the case. I did not understand Mr. Salek to contend that the evidence which the judge admitted in this case was not relevant to the issues in the case. He could scarcely have done so because it was evidence which had a bearing, not only the existence of malice aforethought, but also upon the issues of self defence and provocation. Mr. Salek's contention was that the proper test, which the judge should have applied in determining the admissibility of the evidence, was that described by the majority of the Court in Pfennig, which, so he contended, had modified the test of admissibility propounded in Wilson, and the cases which had followed it.
I am unable to accept these submissions. In my opinion, they read too much into the decision in Pfennig. As I endeavoured to point out in R. v. Tektonopoulos, in determining whether evidence of prior criminal or discreditable conduct is admissible, much depends upon the purpose for which the evidence is being tendered. In Pfennig, supra, the evidence of other criminal conduct was being tendered, as "similar fact" evidence, to prove the fact that the crime charged had been committed and the fact that the accused was the one who had committed it. In cases like the present, the evidence is tendered as bearing on the state of mind of the accused person at the time when the undisputed act occurred. In the latter circumstance the evidence is tendered, not as propensity evidence to prove that the accused was the sort of person likely to have committed the crime charged; whereas in the former circumstance the purpose for which the evidence is being led is to identify the accused as the person who committed the crime charged. Where that is the purpose of the tender, the courts have always acted with caution and required a compelling degree of cogency, in the nature of "striking similarity" or "underlying unity", before admitting the evidence. Where the evidence is tendered, not as evidence of propensity to commit the crime charged but as bearing on the accused's state of mind at the relevant time, the judge must be satisfied that the evidence is relevant to a fact in issue, and must warn the jury that they cannot use the evidence for the impermissible purpose of demonstrating a propensity on the part of the accused to commit that crime. (citations omitted)

As indicated above, relationship evidence is not to be led to establish evidence of bad character or of a propensity towards violence. In R v Ramage[8] Osborn J accepted that evidence of the fear by the deceased of the accused could be led to rebut the reasonable possibility that the deceased provoked the accused by attacking him with a knife. It has been held that such evidence may include statements made by the deceased in the absence of the accused.
[8][2004] VSC 391; see also R v Parsons (2001) 1 VR 161.

Evidence of a statement made by the deceased in the absence of the accused may be admissible if it is probative of a relevant issue as to the deceased’s state of mind.[9]
[9]Walton v R (1989) 166 CLR 283; Frawley (1993) 69 A Crim R 208; Parsons (2000) 1 VR 161.

In Dennis v Gojanovic (No 2)[10] Coldrey J provided a useful summary of the relevant principles as follows:
[10](2002) 130 A Crim R 179 at 179-189.

In R v Arnott, (an unreported decision of 23 April 1992,) I remarked:
"The principles applicable to this type of evidence have been canvassed in a number of cases. These include Shaw v R [1952] 85 CLR 365, R v Tsingopoulos [1964] VR 676, Wilson v R [1970] 123 CLR 334, R v Iuliano [1971] VR 412 and R v Hissey [1973] 6 SASR 280.
From these cases the following propositions relating to admissibility emerge:
(1) The evidence of the prior relationship, (being a relationship of enmity or antipathy), of the accused and the deceased must be reasonably explanatory of the conduct with which the accused is charged;
(2) Such evidence may be adduced to establish motive, or intent, or the fact of the commission of the offence charged;
(3) It is not necessary that any particular incident the subject of evidence pertaining to the relationship should singly and of its own force establish a relationship of enmity. It is sufficient if the incident related makes a contribution which is not insignificant or insubstantial to the climate of enmity or antipathy;
(4) An incident in a relationship which is isolated or remote in time from the death may be insufficient to have any bearing on the issues of motive or intent or the fact of the commission of the crime charged;
(5) Evidence of a prior relationship of enmity or antipathy is not to be led as evidence of bad character or of a propensity towards violence of an accused."
Since that statement, the issue of relationship evidence has received attention in such Victorian cases as R v Anderson (2000) 1 VR 1, per Winneke P p12 ff and R v Parsons (2000) 1 VR 161 per Brooking J at p167 ff. Both cases refer to the judgment of Gleeson CJ in the New South Wales Court of Appeal case of R v Frawley (1993) 69 ACrimR 209. In this case Gleeson CJ stated, (at p220):
"One of the difficulties affecting consideration of relationship evidence is that the concept of relationship is vague. In a particular case ...., it may be necessary to identify with more precision what is in question. Frequent and serious quarrelling between a couple of a kind that goes beyond what Menzies J referred to in Wilson as ordinary difficulties and disagreements, may be relevant to whether one intended to kill the other, or to some other issue in a criminal trial. That is one kind of relationship evidence. What, however, of evidence of the state of mind of one party to a relationship? If one party to a relationship is accused of murdering the other, admissible evidence of the accused's state of mind may well be relevant. It is less likely that evidence of the victim's state of mind will be relevant, although, as the authorities cited above show, it may be relevant, depending on the issues in the case. Again, evidence that one party says things derogatory of the other party, in the other party's absence, is a form of relationship evidence. Whether or not it is admissible may depend upon the circumstances, and it is not particularly helpful to begin with an assumption that, in the case of homicide involving a man and a woman, evidence of their relationship is admissible."

Later at p222 and p223 His Honour remarked:
"In my view the preferable approach in a case such as the present is not to consider the matter in terms of generality as to 'relationship' but, rather, to consider whether the evidence in question is direct evidence of any fact relevant to a fact in issue."

As I apprehend the current defence position in this trial, the issue of intent will certainly be raised as well as provocation, if it proves to be available. The question of the accused's presence at the house or his involvement in the killing is no longer an issue. Accordingly, the question of the admissibility of the relationship evidence must be approached in the context of these defences. (I use the term "defences" broadly.) I turn to that evidence.

THE EVIDENCE ACT 2008

The parties rely on several sections of the Act.

S 55 Relevant evidence
(1)     The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)     In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)     the credibility of a witness; or
(b)     the admissibility of other evidence; or
(c)     a failure to adduce evidence.
S 56   Relevant evidence to be admissible
(1)     Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)     Evidence that is not relevant in the proceeding is not admissible.
S 65 Exception—criminal proceedings if maker not available
(1)     This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)     The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
(a)     was made under a duty to make that representation or to make representations of that kind; or
(b)     was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c)     was made in circumstances that make it highly probable that the representation is reliable; or
(d)was—
(i)against the interests of the person who made it at the time it was made; and
(ii)made in circumstances that make it likely that the representation is reliable.

S 66A Exception—contemporaneous statements about a person's health etc.
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.
S 135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a)     be unfairly prejudicial to a party; or
(b)     be misleading or confusing; or
(c)     cause or result in undue waste of time.
S 136 General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might—
(a)     be unfairly prejudicial to a party; or
(b)     be misleading or confusing.
S 137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

THE CROWN’S OPENING

The Crown filed a summary of its opening on 21 June 2010. On 7 October 2010, the Crown provided a substitute opening that did not include the relationship evidence. It provided as follows:

BACKGROUND
1 Both the accused and the deceased are of Polish background. The accused had been in Australia since he was a boy but the deceased had only been in Australia for about 4 years at the time of her death. The deceased, Barbara Lubik was known to some of her Polish friends at Basia and so some of her friends might refer to her by that name.
2 Barbara Lubik arrived in Australia on a tourist visa in late 2004 and stayed with friends who she had known from Poland. She enjoyed living in Australia and decided that she wanted to stay in Australia for a longer term. For that reason she returned to Poland in mid 2005 to obtain a Student visa which allowed her to stay in Australia for a longer time and to work in Australia. When she returned to Australia she got work as a cleaner and a seamstress and she lived with Mr and Mrs Nowakowski in Hampton Park.
3 In about March or April of 2006 Barbara Lubik met the accused. At the time the accused was about 38 years old and had been living in Australia for about 30 years. He was working and had purchased a house at 8 Julius Crescent, Noble Park North. After they met their relationship progressed fairly rapidly and they got married in July, 2006. From almost the start of their marriage they had arguments about the accused drinking too much and other matters and on some occasions those arguments escalated to the accused being abusive and violent towards his wife. (return to that issue later)
After they were married Barbara Lubik applied for a visa as a permanent resident in Australia and the accused was her sponsor.
Events leading up to death.
On the morning of the 25^th January 2009, the deceased was contacted by her friend, Elizbieta WIJAS and invited to go shopping with her to look at lounge suites in Dandenong. When the deceased informed the accused that she was going shopping, he decided to join them.
All three attended the Dandenong area where they looked for furniture. At some point the accused became separated from the 2 females.   When the deceased and WIJAS noticed that the accused was missing they tried to look for the accused in the shop but were unable to find him.
The deceased attempted to contact the accused by mobile phone to see where he was but he did not answer.   These unanswered calls were over a two hour period between 12:08 pm and 2:04 pm. The deceased and WIJAS continued shopping as these calls were being made and drove to Southland to look at furniture shops there.
Once the deceased and WIJAS had finished shopping, they drove back to the deceased’s home at approximately 3:00 pm.   WIJAS refused to drive the deceased directly home as she was fearful the accused would be angry for leaving him. She dropped the deceased off at the street corner. A short time later the deceased contacted WIJAS informing her that the accused was not home.

The accused arrived home some time after his wife. At 5.33 PM that afternoon there is recorded on the telephone records for the landline at that address a 9 minute call to the TAB.
Between 6:00-7:00 pm the deceased sent a text message to WIJAS “don’t give him”. WIJAS believed this was a reference to lending money to the accused as on one prior occasion the accused had borrowed money from Wijas.
A physical confrontation occurred between the accused and the deceased in the dining room area.   As a result of this confrontation, the deceased received one stab wound to the throat which has resulted in her death. It is the prosecution case that the accused stabbed his wife.
Several telephone calls were made from the home phone and also from the accused’s mobile phone. One of these calls was made to Dandenong Taxi at 6:58 pm.   An order for a cab was registered for a pick up from the accused’s address dropping off at Crown Casino.   Upon arrival, the taxi driver first sounded his horn and when he got no response he knocked on the front door. When he got no response he left without collecting any passengers.
At 7:05 pm the accused rang the home phone of PAWLAK however PAWLAK did not speak to the accused.
At 9:42 pm the accused contacted 000 for an ambulance to attend at their address as a result of a fight with his wife. During the call, the accused said to the operator “my wife don’t like me anymore”. He told the operator that his wife tried to choke him and that he broke out and hit her. The Accused stated she was conscious and breathing and the incident occurred 20 minutes ago. He made no mention of the fact that a knife was involved or that his wife had a knife wound. The accused terminated the phone call.   Emergency Services called the accused.   He stated he had used his fist, his wife was not breathing, she was lying on the floor and there was lots of blood.   The accused was directed to place the deceased on her back and given instructions to administer CPR. The accused appeared to be comply with the instructions given and administer CPR to the deceased whilst she was on her back.
The operator stayed on the line giving advice to the accused.   When the police arrived, they found the deceased was lying face down in the dining room in a pool of blood. The accused was kneeling beside her in the pool of blood. The police told the accused to move away from the deceased and he moved into the kitchen where it would appear that he washed his hands prior to being arrested by the police. Ambulance officers arrived moments after the police and they ascertained that she was already dead and no resuscitation efforts were made. According to the police who attended at the scene and dealt with the accused he appeared to be under the influence of alcohol.
An examination of the crime scene revealed a black handled knife lying next to the deceased. Another knife was located on the dining table approximately 2-3 meters from the deceased.
After the accused was arrested he was conveyed to the Dandenong Police Station where he was placed in an interview room. At the time of his arrest the accused had blood on his hands, arms, legs and shorts. He was photographed in the same state he was in at the time of his arrest.
Whilst the accused was at the police station he was examined by Dr Ryan Tan. The Doctor observed a small wound on the back of the accused right little finger measuring approximately 5 cm. He also observed a graze on his left forearm that the accused told him he may have suffered when he was gardening. The Dr did not observe any signs of injury of the accused’s head, neck, chest or back.
Dr Ryan assessed the accused as being fit to consent to providing a forensic sample in the form of a swab of saliva from his mouth for the purposes of future DNA comparisons. The accused consented to that procedure and a sample was taken. However, given the accused’s medical condition a Doctor assessed the accused as being in need of medical attention once that procedure was completed. The accused is a type 2 diabetic and he had not eaten since the previous morning and also had not had his medication. Due to his deteriorating health the police arranged for the accused to be conveyed to the Dandenong Hospital for treatment.
The accused was admitted to the Dandenong Hospital and remained there to the 30^th day of January, 2009. Whilst at the hospital he had a conversation about the incident with a security guard who was employed by the hospital, Mark Cieslak. Mr Cieslak was also an old friend of the accused who he had lost touch with. The accused told Cieslak that he told Basia that he was going to the casino and she told him that he was going anywhere. His wife then left the room and he was putting his shoes on when she re-appeared with a knife and told him he was not going anywhere. He then tried to take the knife off his wife and received cuts to his fingers. Cieslak observed 2 minor cuts to the accused’s fingers. The accused told Cieslak that he then struggled with his wife and she slipped and lost balance. As his wife was falling that is when it happened, her throat got slit.
CRIME SCENE EXAMINATION.
A Forensic Scientist, Rebecca Kogios, attended at 8 Julius Crescent, Noble Park North to examine the crime scene. Rebecca Kogios is an expert in interpreting blood spatter and stains patterns and she examined the dining room of the premises where the deceased was found. It was apparent that the deceased suffered her fatal stab wound in that room. (photos and plan)
Rebecca Kogios drew the following conclusions as a result of her examination of the blood staining in the dining room;
§That the injury to the deceased had been inflicted inside the        residence and that the altercation had taken place in or close to the dining room.
§That the injury resulted in blood exiting her body under pressure from a breached artery whilst positioned in or close to the dining room.
§That the blood source was bleeding whilst standing or seated for a period of time in the dining room.
§That the deceased was low to the ground in 2 different positions whilst bleeding.
§That the deceased does not appear to have been placed on her back after she had suffered the wound.

There was a pair of white jeans hanging in the hallway (photos 18 to 21). Blood stains on those jeans included stains resulting from airborne blood on the front of both the left and right leg. Those stains indicated that the wearer of the jeans was in proximity to the blood source whilst the blood was airborne. Other staining on the jeans consisted of saturated patterns to the rear of both of the jeans cuffs. That indicated contact between the wearer of the jeans and wet blood on the floor.
Rebecca Kogios also located 2 knives in the dining room. A white handled knife located on the dining room table (photos 26 to 29). There was apparent blood staining on both sides of the blade of the knife and on some areas of the handle. Ms Kogios sampled portions of the handle not covered in blood in order to detect traces of biological material present on the handle for future DNA analysis.
The second knife was a black handled knife located between the deceased body and her right elbow (photo 37). There was apparent blood staining on both the handle and the blade of that knife. The degree of blood staining on that knife was such that in the opinion of the Ms Kogios it was unsuitable for analysis in an attempt to detect any trace biological material on the knife and so she did not examine the knife further.
Another forensic scientist, Debra Ryan, analyzed the samples obtained from the white handled knife in order to obtain a DNA profile from the sample for the purposes of comparing the DNA profiles with DNA profiles obtained from reference samples from the accused and the deceased. Debra Ryan found that the DNA profile obtained from the blade of that knife matched the DNA profile of Barbara Lubik. Debra Ryan then carried out a statistical analysis of the matching profiles which provided extremely strong support for the proposition that the blood on the blade of the knife originated from Barbara Lubik. The accused was excluded as a source of the blood on the blade of the knife.
The DNA profile obtained from the sample from the handle of the white handled knife indicated a mixture of DNA from at least 2 people. The DNA profile of the major contributor to that mixture matched the DNA profile of the accused and so he could not be excluded as the source of the major component of the DNA on the handle of the knife. The scientist then carried out a statistical analysis of matching profiles which provided extremely strong support for the proposition that the major component of the biological material on the handle originated from Peter Lubik.
POST MORTEM EXAMINATION.
Dr Matthew Lynch, a Forensic Pathologist, employed at the Victorian Institute of Forensic Medicine , performed an autopsy on the body of Barbara Lubik on the 26^th day of January, 2009. The Doctor found the cause of death to be a stab injury to the neck. The approximate depth of the wound was 5 CM and it severed the left common carotid artery. The degree of force required to inflict the wound on a scale of mild / moderate / severe was in the opinion of the Doctor at least moderate. He is also of the opinion that the injury would have been rapidly incapacitating and fatal.
The only other injuries detected by Dr Lynch was bruising on the side of both of the deceased’s thighs. (photos 29 to 31)

THE CROWN’S INTRODUCTORY OBSERVATIONS

The Crown contends that the aggressive and hostile conduct of the accused towards the deceased over the two and half years before the accused’s death as established by the relationship evidence reveals and discloses the enmity and antipathy the accused felt towards his wife,[11] particularly when under the influence of alcohol. The Crown alleges that this evidence of the accused’s state of mind can be used by the jury in assessing the probability of the existence of an intention by the accused to kill or really seriously injure the deceased in stabbing her as the Crown alleges.
[11]Tr 30.

The Crown relies on a series of incidents that by themselves may not establish a relationship of enmity or antipathy but make some contribution towards establishing an attitude of enmity or antipathy felt by the accused towards the deceased.[12] The Crown rejects the suggestion that the conduct is too remote and points to R v Wilson and R v Anderson where relationship evidence was led of incidents two years before the death of the deceased. The Crown contends that it is the series of incidents which fully reveals the true enmity and antipathy felt by the accused towards the deceased, particularly when under the influence of alcohol.
[12]R v Iuliano [1971] VR 412 at 416 per Winneke CJ, Little and Gowans JJ.

The Crown contends that the Evidence Act 2008 expands the evidence available to establish relevant relationship evidence by allowing the admission of first-hand hearsay evidence that might otherwise be inadmissible.

The Crown contends that the relationship evidence can also be used to disclose the fear felt by the deceased towards the accused and the evidence of that state of mind can be used by the jury in assessing the probability of the deceased attacking the accused with a knife as alleged by the accused.

THE ACCUSED’S INTRODUCTORY OBSERVATIONS

The accused argues that the relationship evidence is not relevant to the facts in issue and if it is relevant it should be excluded in the Court’s discretion or mandatorily under s 137 of the Act.

The accused refers to R v Frawley[13] where Gleeson CJ held that relationship evidence must be relevant to the facts in issue. He said it was not particularly helpful to start with the assumption in the case of homicide involving a man and a woman that evidence of their relationship is admissible.
[13](1993) 69 A Crim R 208 at 220.

The accused also relies on the judgement of Barwick CJ In Wilson v R[14] where he said:

If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance it is inadmissible. Of that kind was the evidence in R. v. Barbour 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 was 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 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. (citations omitted)

[14](1970) 123 CLR 334 at 339.

The accused relies on several propositions that he says can be gained from the judgment of Barwick CJ. First, that in Wilson’s case the evidence was of a quarrelling and bad relationship that stretched up to the death of the deceased. He says that in contradistinction in this case, the bad relations had ceased at the date of death. The accused points to the evidence that the deceased told Mrs Wijas on the day she died that she was no longer afraid of the accused and Mrs Wijas observation that they looked happy. Secondly, the last fight had occurred on 4 November 2008 some considerable period before the death of the deceased. The accused says that in this case the link of the former conduct of the accused towards the deceased was broken and that no longer could a logical and reasonable inference be drawn from that evidence about the confrontation between the accused and the deceased on 25 January 2009.

Secondly, that not all evidence of the relationship of the parties is relevant but only evidence from which a relevant inference may logically and reasonably be drawn. He says that where the relationship evidence is tied to occasions when the accused was “drunk”, that it is not relevant to lead evidence of his conduct and the deceased’s reaction when there is no evidence he was “drunk” during the confrontation leading to the death of the deceased.

Thirdly, the accused says the judgment accepts that the occasion of quarrelling may be too remote to draw a relevant inference. He argues that evidence of altercations that occurred some years before 25 January 2009 and finished on 4 November 2008 are too remote to be relevant to deciding any matter in issue in this case.

IS THE RELATIONSHIP EVIDENCE TOO REMOTE?

The relevant evidence extends from shortly after the marriage to 4 November 2008. The accused argues that these events are too remote to be relevant or should be excluded as the probative value is outweighed by the prejudice to the accused. In my view they are not too remote. Together they provide a pattern of behaviour from which relevant and reasonable inferences might be drawn. The breadth of the evidence is relevant to establishing whether or not the individual events were isolated or an aberration or demonstrative of enmity or antipathy by the accused towards the deceased.

WAS THE ACCUSED INTOXICATED?

The accused objects to the tender of the relationship evidence as it is all associated with occasions when the accused was affected by alcohol. In particular he says the evidence is not relevant because it doesn’t affect the probability of any fact in issue at the trial. He says that the prosecution can not prove that the accused was “drunk” when the deceased was killed and therefore the necessary link is missing to enable a relevant inference about a fact in issue to be logically and reasonably drawn.[15]
[15]Tr 174.

The accused contends there is no evidence of the foundational fact alleged, namely, that the accused was “drunk” on 25 January 2009. He says that evidence of a history of arguments and throwing out the deceased from her home at a time when the accused was drunk can not bespeak of a relationship that was still current and occurring relevantly on 25 January 2009, if on the evidence, that was not the accused’s condition. The accused says that in those circumstances, the evidence could not satisfy the test in s 55 of the Act.[16]
[16]Tr 134.

He says that the accused’s recorded replies on the 000 call do not suggest he is “drunk”. He says that in that call the accused answered many questions put to him and he makes a lot of rational answers and gives responsive answers.

He concedes that the observations by police of the accused when attending the premises indicate he smelt of alcohol, was unsteady on his feet, (Kelly, D 772), that he appeared to be alcohol or drug affected and was mumbling (Krandis, D 863), he appeared either alcohol or drug affected (Summers, D 775); he appeared alcohol affected (D 161 and 165, McMullen).

The accused says, however, the search of the premises located only one empty stubby of beer in the garage and one empty shot glass in the bin in the garage (photo book 1, photos 62-69). He says these do not support a finding that he was “drunk”.

The accused says that Dr Tan attended at the police station some five hours after the accused’s death to determine the fitness of the accused to be interviewed. He says that Dr Tan was of the view that the accused was suffering from type 2 diabetes when he saw him and the accused says the affects of that condition may be responsible for the sorts of observations of the accused that the police saw.[17]
[17]Tr 133.

On the other hand, the Crown contends that the accused’s state as seen by the police could be explained by the accused drinking whilst he was absent during the afternoon. The Crown says that ultimately it is a matter for the jury whether or not the accused was in a state affected by alcohol when he had the confrontation with the deceased.

The relevant question the accused raises, is whether the relationship evidence which relates to the accused’s conduct when he was intoxicated is only admissible if the accused was intoxicated at the time of the confrontation between the deceased and the accused.

In my opinion, however, there is sufficient evidence of the accused being affected by alcohol when the confrontation occurred to lay a foundation for the relevance of the disputed relationship evidence. Even so, I consider that the relationship evidence relevant to the deceased’s fear of the accused is admissible irrespective of the accused’s state of intoxication and is relevant to whether she is likely to have attacked him with a knife in an argument.

WAS THE DECEASED SCARED OF THE ACCUSED ON 25 JANUARY 2009?

The accused asserts relationship evidence tending to establish that the deceased was scared of the accused is not admissible as the evidence is that the deceased was not scared of the accused on 25 January 2009.

The accused refers to the deposition evidence of Mrs Wijas who went shopping with the deceased on the day of her death.

Basia and I were good friends and we did the normal things like shopping and having coffee. In January 2009, I started looking for a sofa for my house. I had told Basia that I was looking for one and she said she would come with me.
We made arrangements on 25^th January 2009 to go and look at sofas. She had to check that it was OK with Peter and he decided that he would come with us. Basia didn't really want him to come but he had made up his mind and he was coming.
We made arrangements to meet at Dandenong Frankston Road at a furniture store. I think it is called Kikee. We were to meet at 11.30 but I was running late and I arrived there around 11.40 — 11.45 a.m. I drove my car and Peter and Basia drove theirs.

When they got there, Peter asked me where the leather was. I told him it was in another store. He said lets go into that shop then, but I wanted to stay at this store. They both looked happy and like they hadn't been fighting. After I told him that I wanted to stay he seemed fine. He stayed with us and seemed happy to do so.
Peter seemed to follow us, but us girls were too busy shopping that we didn't see him leave. Basia asked me where he was and I said I didn't see him, so we just kept shopping. Basia said he might have gone for a smoke. I think we kept shopping for about a half an hour.
Once we left the store, we went looking for Peter in the car park. We didn't see him so we started looking for his car. We went up to one car but realised that it wasn't his car. A short time later she said "He's left me here." This has happened before.
Basia tried to call him on his mobile but he didn't answer. She rang a second time But she told me that the phone was off. I talked to her and told her that maybe he was upset and she agreed. Peter's mood often changed quickly. I told her that I would drive her home but she said that he was already upset and that wont change. She then said that we should go to the other shop to see the leather.
We went to the other shop which I think is called X Warehouse and we were there for about 10-15 minutes. I think it was around 12.30 at this point.
I asked her if she wanted to go but she said no and she told me that she wanted to go to Southland. We drove to Southland and we stopped off at Natusi to look around. When we finished at Natusi, we went to Southland. We stayed at Southland for about an hour and then I drove her home. I drove to her place and I told her that I would drop her off at the corner of her street. I told her that I was scared to come to her house as I though Peter would be drunk and upset.
I think it was about 3.00 p.m when I dropped her off. I told her that I was scared of him and she told me that she wasn't scared of him anymore. I drove off and then I received a call from Basia telling me Peter wasn't home. I was relieved when she said he wasn't home.
I then drove home to prepare to go to church with my family. Church started at 6.00 p.m, and when I was sitting in church my SMS message tone rang. I immediately turned off my phone and didn't look at the message.
I finished church and I checked my phone and saw a message from Basia. The message wasn't a full message and it was in Polish. It read "Don't give him." The first think I was thinking was that Peter was drunk and he wanted money. Peter gambles a lot. Basia told me that their credit cards were maxed out at $10,000.00. I also lent him $3,000.00 about a year ago or so, but he paid it back.
Once I received the text, I didn't call back because I thought they were fighting and to be truthful, I couldn't be bothered dealing with it. I have since deleted the message.

The accused says that this evidence establishes that the deceased was not scared of the accused on 25 January 2009 and that this fact undermines the principal argument of the prosecution that the relationship evidence is relevant to the facts in issue. He says that the relationship evidence that goes to her being scared of the accused in the past can not go to her state of mind on 25 January 2009.

I do not accept this submission. There are several reasons why the accused may have said what she did to Mrs Wijas while still remaining scared of the accused as she said she had been in the past. She may have been seeking to allay Mrs Wijas’ concerns about leaving the deceased with the accused when Mrs Wijas was expecting the accused to react badly to having been left by the deceased at the shopping centre. It may have been wishful thinking by the deceased. In my opinion, the relationship evidence sought to be tendered shows that during their whole marriage the deceased had been scared of the accused, especially when he was affected by alcohol. As Menzies J said in Wilson v R in upholding the admission of relationship evidence: “To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.”

I accept that in this case there were periods of harmony in the relationship but in my opinion the evidence of their tempestuous relationship since their marriage and the deceased’s reaction to her husband’s aggressive and hostile behaviour when affected by alcohol is relevant to the issue of the state of mind of the deceased on the evening of 25 January 2009 and whether she would approach the accused with a knife.

GAMBLING AND THE RELATIONSHIP BETWEEN THE PARTIES

The accused contends that evidence of the relationship between the accused and the deceased concerning the accused’s gambling is relevant and can be admitted. The accused says there is evidence to suggest that the confrontation between the accused and the deceased was triggered by an argument over gambling. The accused says that evidence supports the statement by the accused to Mr Cieslak that the confrontation was over the deceased’s objection to the accused going to the casino.

The accused points to the phone call for a taxi to go to the casino at 7.00pm, the phone records of calls to the TAB, the presence of three gambling chips found at the house on the floor, the incomplete text message to Mrs Wijas from the deceased “Don’t give him” which the accused says may relate to Mrs Wijas being asked to lend money to the accused to gamble with. In the past Mrs Wijas had lent money to the accused. On the other hand, the accused contends that any other relationship evidence not triggered by a dispute about gambling is not relevant and should not be admitted.

In my opinion, the fact that the confrontation may have been triggered by a dispute over the accused’s gambling does not limit the relevant relationship evidence to disputes over gambling. The relationship evidence sought to be tendered is to establish that throughout their marriage the accused when affected by alcohol was physically violent and abusive towards the deceased. The Crown seeks to infer from this that the accused bore animus towards the deceased and further infers that animus is relevant in considering whether the accused formed an intention to kill or cause really serious injury to the decease.

The Crown alleges that the relationship evidence suggests that the accused’s aggressive and hostile behaviour was triggered by arguments over various matters. In my opinion the fact that the argument may have been over gambling on the night of the deceased’s death does not make irrelevant the relationship evidence of altercations triggered by arguments over other matters. I do not accept that the relationship evidence which is otherwise relevant should be excluded unless it occurred when arguing over the accused’s gambling.

IS THE CROWN’S CASE STRONG?

The accused submits that the relationship evidence is not relevant or alternatively if relevant should be excluded because of its prejudice because the Crown’s case is not strong. He refers to Wilson v R[18] where there was independent evidence that the shotgun had not been discharged accidentally. The safety catch had been left off. The gun was still on the hay bale even though the evidence suggested that if set off by the dog, it would have recoiled off the trailer. The accused had mentioned to his girlfriend, with whom he was having an adulterous relationship, that he may have to get rid of his wife by and “accident.” In R v Parson,[19] there had been a frenzied killing in front of witnesses outside the Family Court.
[18](1970) 123 CLR 334.
[19](2000) 1 VR 161.

The accused seeks to contrast cases such as these with the present where there is no evidence of any weapon being used against the deceased in the past, save when she was once chased by the accused with a knife. He says there is little evidence of any physical injuries to the deceased. He says the altercations appear to be limited to times when the accused was “drunk”.

In my opinion, there is some force in this submission. I do not consider it sufficient, however, to exclude the evidence as being irrelevant or that it should be excluded as prejudicial. I consider the evidence is of relevance particularly where the deceased has died in circumstances of a confrontation between a husband and a wife where there was a history of ill treatment of the wife and aggressive and hostile behaviour by the accused when affected by alcohol. Clearly in such a case as this, the defence could lead evidence of a happy and harmonious relationship to meet the accusation of murder. In my opinion, the jury would be left to decide the case in a vacuum if the relationship evidence sought to be led was not admitted.

NO EVIDENCE OF ESCALATING VIOLENCE

The accused contends that the photograph of the bruise taken in August 2006 is pretty much the only evidence of violence over two and half years. He argues the case is not one where there is an escalation of violence with arguing at the beginning, later escalating to violence and then death occurring at the end.[20] He says the evidence is to the contrary.
[20]Tr 184.

The accused points to the evidence of Mrs Wijas that the deceased said she was not scared of the accused any more on the afternoon of 25 January 2009. The accused also relies on the evidence of Mrs Wijas that “they both looked happy and like they hadn’t been fighting” on that day. He says that there is therefore no escalation of violence rather there is more evidence of physical altercation at the beginning than there is at the end.

In my opinion, the evidence of the aggressive and hostile conduct does not have to be of an escalating nature. The fact that the relationship was marked by tension, fights, aggression and some violence is relevant in the sense described by Heydon JA in R v Clark[21] referred to above.
[21](2001) NSWCCA 494.

EVIDENCE OF DANUTA NOWKOWSKI

I propose to deal with the proposed evidence of Danuta Nowkowski in detail. I will then use the principles flowing from my ruling with respect to her evidence in ruling on the evidence of the other relevant witnesses.

Mrs Nowakowski was a friend the deceased. The Crown seeks to lead the following relationship evidence from her.

Incident 1: Representation A 1

In the early stages Barbara would often spend the weekend at Peter's house at 8 Julius Cresent, Noble Park North. On one occasion shortly before they got married, Barbara called me in the middle of night and told me that Peter had kicked her out of the house and that Peter's ex girlfriend was inside. Peter told Barbara that he had unfinished business to discuss.

I rule that incident 1 is not relevant. Section 55 provides that the evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. In my view this evidence could not rationally affect the assessment of the probability of the existence of the fact of the deceased’s fear of the accused. I also doubt if it could rationally affect the existence of the assessment of the probability of whether or not the accused bore animus towards the accused.

The Crown has given hearsay notice A 1. As I have excluded this evidence it is not relevant.

In any event, under s 137 of the Act I would exclude it as its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused.

Incident 2 - Representation C10

Barbara often told me that Peter would get drunk and was boisterous and aggressive in nature. I'm not aware that he was physically aggressive in the early stages of their relationship, but was definitely verbally aggressive towards Barbara.

The accused contends that the date is too vague. He also submits that the representation does not involve any weapons or physical injury to the deceased. He says it does not affect the probability of any fact in issue. He also submits that the representation does not fall within the exceptions to the hearsay rule relied on.

I understand the second sentence to be based on observations of the witness. The first sentence is hearsay.

In my opinion, the evidence is relevant. It is relevant as this evidence coupled with the other relationship evidence could rationally affect the assessment of whether or not the accused formed an intention to kill the deceased or cause really serious injury to her. The evidence avoids the issues being presented in a vacuum. It provides an essential background against which the jury can better evaluate and assess the evidence of conduct which occurred on 25 January 2009.

The first sentence would be excluded as hearsay unless that consequence is avoided by the Act. Section 66A is not relevant. The Crown relies on s 65(2) (b) or (c).

In R v Naidu[22] J. Forrest J said this about the expression “shortly after’” as it appears in s 65(2)(b):
[22][2010] VSC 356 at [82]-[85].

82 The Act does not define what is meant by the expression “shortly after”. In Conway,[23] the full Federal Court said:
[23]Conway v R (2000) 98 FCR 204, 241.
The word “when” in s 65(2)(b) of the Act encompasses this notion of strict contemporaneity. The introduction of the expression “shortly after” is, however, a significant departure from traditional doctrine…[24]
[24]Ibid, 239 [123].
…
The primary objective which underlies the requirement in s 65(2)(b) of the Act that the representation be made “when” or “shortly after” the asserted fact occurred seems to be to ensure that the matters conveyed are either strictly contemporaneous or, if narrative of a past event, still fresh in the mind of the person recounting that narrative. The expression “shortly after” makes it clear that there need not be anything like the strict contemporaneity required at common law to render the evidence admissible as res gestae.[25]
[25]Ibid, 241, [133].

83 In Williams,[26] the full Federal Court said:
For these reasons, it would be a mistake, in determining whether a statement has been made “shortly after”, to over-emphasise such matters as whether the events in question were “fresh” in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may easily be recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that that the statements be made spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact. In Conway the statement in question was made by a murder victim who said, while observed to be looking “terrible”, that she had been drugged and had been “off her face for about three or four hours”. The comments of the Court in Conway regarding the meaning of “shortly after” should be understood accordingly. The approach taken in Conway to s 65(2)(b) as a whole is consistent with such a reading of that case. (emphasis added)[27]

84 Subsequently, in Harris v R,[28] the New South Wales Court of Appeal noted that the expression “shortly after” cast a wider net in terms of admissibility than that of a contemporaneous statement made at the time of the subject event (and therefore part of the res gestae). Each case in which the provision was relied upon depended upon the particular circumstances and the “proximate pressure“ of the events.
85 It follows that it is not necessary for the statement (representation) to be contemporaneous. Rather, the question is whether in the circumstances the events are sufficiently fresh in the memory of the maker and proximate to those events so as to make it unlikely that the statement is a fabrication.

[26](2000) 119 A Crim R 490.

[27]Ibid, 502 [48].

[28]158 A Crim R 454.

As to s 65(2)(c), J. Forrest J said the following on in his ruling on the admissibility of hearsay evidence:[29]
[29]Ibid at [67]-[69].

67 In R v Ambrosoli,[30] the New South Wales Court of Appeal said of a representation sought to be admitted under this provision:
[30](2002) 55 NSWLR 603.
Since the matter to be determined is the admissibility of the evidence of the person who saw, heard or otherwise perceived the previous representation, the focus remains the reliability of the representation, not (directly) the reliability of the asserted fact

68 The full Federal Court has considered the application of s 65(2)(c) on two occasions.[31] In Conway,[32] the Court said:
[31]Conway v The Queen (2000) 98 FCR 204, 244 [145]-[146], R v Williams (2000) 119 A Crim R 490, 503 [50]-[58].
[32]Conway v R (2000) 98 FCR 204, 241
We think that it is legitimate for a trial judge to have regard to evidence of what the maker of the previous representation has said on other occasions, when determining whether or not it is highly probable that a particular statement was reliable[33]
[33]Conway v The Queen (2000) 98 FCR 204, 244 [145]. See also R v Ambrosoli (2002) 55 NSWLR 603, 615 [34].

In Williams[34] the Court said:
Following the Conway[35] approach, the trial judge was entitled to consider other available relevant evidence as to all the circumstances in which the statement was made.[36]

The Court went on to hold that the trial judge was entitled to take into account not only consistency with other material in the prosecution’s case, but also the circumstances in which the particular representation was made.[37]
69 So in determining the reliability of a representation under s 65(2)(c), it is open to the Court to look at the circumstances generally in determining its reliability (for instance, whether inconsistent or consistent statements had been made previously by the maker or whether the maker had later recanted his or her account).

[34](2000) 119 A Crim R 490.

[35]Conway v R (2000) 98 FCR 204, 241.

[36]Williamsv R (2000) 119 A Crim R 490, 503 [54].

[37]In Williams’ case, the hearsay representation relied upon by the prosecution was made in the course of a record of interview in which the maker had been cautioned that he was suspected of having aided and abetted the appellant who was implicated in the hearsay account. 503 [54]-[56].

In this case, it does not appear that the representation was made when or shortly after the asserted fact occurred. Paragraph (b) therefore does not apply. In my opinion paragraph (c) applies. The representation was made in circumstances that make it highly probable that the representation is reliable. There is no suggestion that the deceased was unreliable or confused when she made this statement. The statement is consistent with the other relationship evidence sought to be led by the Crown.

Whether the evidence should be excluded as being unfairly prejudicial under s 137 need not be considered until the whole of the evidence relating to the deceased’s death is taken into account.

Incident 3:

Around two weeks after they were married, Peter threw all of Barbara's clothes, knick knacks and photographs out onto the front patio. The argument was over Barbara having men's phone numbers in her mobile phone, Peter was very jealous man. On this occasion the police attended. It was usually Peter that started the fights, then he would call the Police and Ambulance. My husband and I went around there. Peter yelled at us when we arrived, so we tried to calm him down, it didn't work. Peter was insinuating that Barbara was having affairs with other men. We tried to leave but Peter told us wait until the police came.

It is not clear whether Mrs Nowakowski witnessed all the matters she gives evidence of or whether or not some is based on what she was told, presumably by the deceased. I assume that when the evidence is led it will be led in an admissible form.

The accused contends the evidence is not relevant as the argument appears to have been over the deceased having the phone numbers of men on her mobile and his accusation that she was having affairs with other men.[38]
[38]Tr 178.

As indicated above, I do not find that the evidence of the aggressive and hostile conduct by the accused is not relevant because the incident may not have been triggered by a dispute over gambling but instead apparently over other men. The accused’s actions of throwing the deceased’s clothes and personal possessions out onto the front patio appears to take the relationship beyond that of an ordinary married couple with a good relationship despite differences and disagreements[39] and may be seen as displaying an aggressive and hostile side to the accused’s relationship with the deceased.
[39]To use the words of Menzies J in Wilson v R (1970) 123 CLR 334 at 344.

The accused also contends the evidence should not be admitted as it does not involve any physical violence, injury or weapon. He argues it is not probative of the state of mind of either the accused or the deceased on 25 January 2009. He says there is no evidence that the accused was being thrown out on 25 January 2009.

I have dealt with these points above. In my view, the fact that the argument was about other men, that she may not have been assaulted or injured, or that no weapon was involved, or that the accused may have been “drunk” is no bar to the admission of the evidence as relevant to the issues in the case as the Crown contends.

Incident 4 – Representation A 6[40]

Not long after this incident Peter and Barbara had an argument, Peter was drunk. Barbara came and stayed with us. The next morning Peter rang and was saying he was sorry and begged her to come home, he told Barbara he was going to commit suicide if she didn't, we then drove around to Peter and Barbara's. When we arrived the Police and Ambulance were there. Peter had called them. Peter had slashed his wrists and was in the bath with towels around his wrists, the wounds were superficial. The ambulance took him to hospital as Peter had also taken an overdose of pills.

[40]402.

The accused contends that the photograph of the deceased’s injury to her forehead (taken on 12 August 2006) was probably taken when the deceased stayed with Mrs Nowakowski as referred to in this incident. The accused says that these were sustained when the accused was drunk. He again contends that this is not relevant relationship evidence as he says the accused was not drunk on 25 January 2009.

I have rejected that argument in the general propositions referred to above. In may opinion the evidence is admissible. The evidence does contain an element of hearsay subject to notice A 6. In my opinion, it is admissible under s 65(2)(b) of the Act as the statement was made shortly after the asserted fact occurred in circumstances that make it unlikely that the representation is a fabrication.

Incident 5[41]

I would say there was never more than two months between each big row, what happened in between, who knows.

[41]403.

The incident does not involve a hearsay representation. It is relied on as relationship evidence. The accused says it is too impressionistic and what is meant by a big row is too vague.[42] In my opinion, it is admissible when considered in the light of evidence by other witnesses to altercations between the deceased and the accused.
[42]Tr 185.

Incident 6 – Representation A 10[43]

A few days later on New Years Eve [2006], Peter and Barbara had another argument. Peter was drunk. On this occasion Barbara jumped a neighbour's fence and spent the night on their back patio as they were away on holidays. Barbara was physically fearful of Peter.

[43]403.

The accused submits that the last sentence is not in admissible form. I agree. On the assumption, that Mrs Nowakowski was told this by the deceased and is able to identify when she was told, it would be admissible.

The accused says it is too remote and irrelevant as the accused was drunk. For reasons previously given I do not accept these grounds of objection. The hearsay evidence is admissible under s 65(2)(b) of the Act in relation to the deceased telling the witness the accused had argued with her while drunk and that the deceased had been physically fearful of the accused and jumped the neighbour’s fence. In my opinion, it was made shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication.

Incident 7:[44]

There were several occasions that they would argue and Barbara would run from the house and hide in bushes as Peter would get in the car and chase her. Often I would have to pick her up from different places in the streets. She would be terrified.

[44]403.

The accused submits the evidence is vague, impressionistic and includes opinion. He says where the witness says “she was terrified”, it doesn’t specify what she’s terrified of, that is, whether she is terrified of the accused when affected by alcohol or his behaviour whilst in that condition.[45] In my opinion, the evidence is admissible. Perhaps the evidence may have to be expanded, but I believe the witness is able to express the observation that in the circumstances, the deceased was terrified. It may also be necessary for the witness to distinguish between what she was told and what she observed herself. Subject to the evidence being in otherwise admissible form, I find that it is admissible.
[45]Tr 187.

Incident 8 – Representation A 24[46]

About a week or so after their last wedding anniversary, Peter rang Barbara and told her that he had been to immigration and told them that she had done illegal things, and had been to a solicitor and filed for divorce. Barbara went home and they had a big argument. During this argument she ran away and came to our place, Peter kept calling her mobile and was apologising asking her to come home, he told her if she didn't come he would take an overdose. He would then hang up. Barbara was worried and rang him back, Peter then told her that he didn't deserve her, and she could do better, she tried to talk to him to calm him down, telling him it was going to be okay. Barbara made these calls on our house telephone, we were present when she made these calls. Barbara then called the ambulance. The ambulance called back as they found nobody was home, they told us they would get the police and enter the house. We received a call back from the Ambulance who told us police had entered with the Ambulance and it appears he hadn’t taken an overdose. After several hours Peter rang up on our home number and spoke with Dick, when Peter rang we put the phone on speaker. Dick was asking Peter why he was doing this. Peter was basically telling Dick that we were stupid and that we should be afraid of him. Peter became arrogant, I then got on the phone and asked Peter if he realised what he was doing to Barbara and us.

[46]403.

The accused submits the incident is remote as it was a week or two after 15 July 2008. He argues that the altercation was verbal and not physical and that there were no weapons involved. He said the argument was over a report made to the immigration authorities and filing for divorce. He says that as the arguments did not involve gambling then they are not relevant and inadmissible.

I have already rejected this ground of objection to the evidence and rule that it is admissible for the reasons expressed above subject to the following.

The accused argues that the second part of the paragraph dealing with threats made by the accused to Dick, namely Vladyslav Nowakowski, simply goes to bad character and any threats to others, other than the deceased, is irrelevant and is evidence of mere character and ought to be excluded.[47]
[47]Tr 189.

I agree that the second part of the paragraph beginning “After several hours Peter rang up” is inadmissible. It is not relevant to the relationship between the accused and the deceased.

Incident 9 – Representation C 25[48]

Dick and I had told Barbara many times to leave Pete. She said she wouldn’t leave him because she couldn’t take her dog. Barbara always had a fear that if she left Peter for good he would “hunt” her down. She was also worried about starting afresh in a new country. She had told me on several occasions that perhaps she would be better off returning to Poland.

[48]404.

The accused says that Dick and Mrs Nowakowski telling the deceased that she should leave the accused is irrelevant. He says it does not have any probative value. The accused says the response of the deceased is not relevant. The accused raises similar objections to that previously raised. He says that there is no evidence that the accused was leaving the deceased on 25 January 2009.

In my opinion the evidence is relevant for reasons previously given. In my opinion the hearsay evidence is admissible under s 65(2)(c) as I find that the representation was made in circumstances that make it highly probable that the representation is reliable.

I find the first sentence is admissible as the second sentence is a response by the accused that should be given in its proper context. The sentence should not be admitted as relevant evidence of the state of mind of the witness or her husband.

Incident 10- Representation A 22[49]

I think it was Easter 2008, Barbara called me and told me that her and Peter had had another big fight and asked me to come over to pick her and the dog and a few belongings up, she told me not come to the house but to meet me around the corner. She said that Peter was out cold, drunk. I went and picked her up. We spent some hours talking, I think we went to the Springvale Police Station and discussed it there. Peter phoned her later and abused her, and then begged her to come back. It was emotional see-saw. Later that day we went back around to Barbara’s house, when we arrived I saw Barbara’s clothing, pictures, jewellery strewn all over the front patio and yard. We took garbage bags to collect her things, as we picked up her things we noticed that her clothes had been cut up, everything that was thrown outside was cut up and damaged. I think it was after this occasion that I noticed Barbara had bruises on her face and chest. I took photos of these injuries and hopefully have them saved on my computer.

[49]404.

The accused says that the witness is confused about this incident as the photograph was taken in August 2006 and this alleged incident took place in Easter 2008.

The accused submits that incident is remote. He says that the evidence that the accused was “out cold drunk” is irrelevant as he was not in such a condition on 25 January 2009. He says that there is a risk that the jury might construe the reference to a “fight” as a physical altercation and if it has any probative value it should be excluded in the exercise of discretion.[50] He submits that the visit to the Springvale police station was on 22 July 2008. He says that on that occasion the deceased went to the Springvale police station to complain about the accused drinking at home in breach of an intervention order. He says that on that occasion she made a statement about the accused pushing her with his hand on her arm.
[50]Tr 193.

I concede there may be some confusion in the witness’ mind as to dates. I do not consider that is sufficient to exclude the otherwise relevant evidence. The witness herself says in incident 11 that there were so many incidents that she is having difficulty remembering them in the correct order.

I find that the evidence is admissible.

Incident 11:[51]

There was so many incidents that I am having difficult remembering them in correct sequence and the finer details.

[51]405.

In my opinion, this evidence is admissible to explain the difficulty the witness has in assigning precise dates to various incidents.

Incident 12:[52]

He was continually emotionally blackmailing Barbara it was constant abuse verbally and physically.

[52]405.

The accused says this evidence is not in admissible form. The Crown admits it is not in admissible form but submits it could ask a question, “From your observations what was the nature of the relationship?” Insofar as the witness gives a description based on her observations, in my opinion it is admissible.

The Crown points to the fact that the accused is intending to rely on the evidence of Mrs Wijas that the accused and the deceased appeared happy on 25 January 2009.

The accused says that the witness can not be asked about a relationship which is based on a series of events. In my opinion, if the witness regularly saw the accused and the deceased, then she may be able to give evidence of her observations which bears on their relationship. The Crown relies on s 78 of the Act. I am not able to consider its application at this point.

SECTION 137 OF THE ACT

I now turn to the exclusion of otherwise relevant evidence.

In my view, the evidence sought to be adduced from Mrs Nowakowski going to the altercations between the deceased and the accused after their marriage is not excluded by s 137 of the Act. In my opinion, the probative value is material and relevant. The accused says that the prejudicial aspect is that despite the jury being directed to not use the evidence as evidence of bad character or of a tendency to use violence on the part of the accused, the jury may give too great a weight to the evidence which by its nature is only circumstantial evidence and from which the Crown seeks only to draw inferences. On the other hand, if the evidence is excluded the jury would be considering the evidence in a vacuum. They would be left with quite an artificial picture. In my view, the evidence gives an essential background against which the events of 25 January 2009 can be better evaluated by the jury.[53]
[53]I am here using expressions used as cited by Heydon JA in R v Clark at [135].

THE OTHER WITNESS STATEMENTS

In my view, I have provided sufficient guidance to assess the additional witness statements without detailed analysis. The Crown has indicated it does not propose to lead certain evidence contained in the statements. That evidence has been identified in the transcript. In several instances the evidence sought to be led may not be in admissible form. I have assumed that the Crown will lead the evidence in admissible form. I shall therefore deal with each witness without detailed reasons.

ELIZBIETA WIJAS

The Crown has given hearsay notice A 2 in relation to the first paragraph on 596. The Crown says the evidence is relevant relationship evidence. It relies on s 65(2) (c) and s 66A of the Act. I find that it is admissible under s 65(2)(c). In my view it is highly probable the representation is reliable.

The Crown has given hearsay notices A 12 and 13. A 12 relates to paragraph 4 on 596 and A 13 to paragraph 6 on that page. I will allow their admission under s 65(2)(b). I find it is unlikely the representations were a fabrication.

The Crown has given hearsay notices A 29 and A 30. The accused objects to their admission. In my opinion they are relevant and are each admissible under s 65(2)(b). I find it is unlikely the representations were a fabrication.

I rule that the evidence in the first two paragraphs on 597 is inadmissible.

I rule that the last sentence in paragraph 4 on page 598 beginning “I told her ...” is inadmissible.

I do not accept the objection to Mrs Wijas telling the deceased that she was scared of the accused as it is necessary to understand the response of the deceased that she was not scared of him anymore in paragraph 5 of 598.

Otherwise the relationship evidence sought to be led by the Crown is admissible.

REGIINA THEISS[54]

[54]394-399

Mrs Theiss is the daughter of Mr and Mrs Nowakowski.

The Crown has given hearsay notices A3, A8, C7, C8, C22 and C23. Subject to the observations below, I rule that the hearsay evidence in representations A3, A8, C7, C8, C22 and C23 are each relevant relationship evidence and admissible under s 65(2). I find it is unlikely the representations were a fabrication or it is highly probable that the representations were reliable.

The Crown does not intend to lead any evidence referring to the psychiatric problems of the accused referred to on 396.

I rule that the last paragraph on 396 is not relevant and is inadmissible.

The first two sentences of the second paragraph on 397 are inadmissible.

As I understand the matter, the Crown wishes to lead a version of the evidence in paragraph 2 at 398 as follows: Over the last 12 months, the deceased would leave for a day or two, but always went back to him. In my view it is admissible if based on observations or what she was told by the deceased.

Paragraph 4 is admissible if based on Thiess’ observations or representations to her by the deceased.

Otherwise the relationship evidence sought to be led by the Crown is admissible.

HALINA KOWALCZYK

The deceased was originally a cleaner at Mrs Kowalczyk’s house and later they would meet socially.

The Crown has given hearsay notices A5, A7, A9 and A14. Each of the representations A5, A7, A9 and A14 are relevant. I find that each are admissible under s 65(2).

The evidence about the deceased’s birthday party is admissible save for the first paragraph on 616.

I disallow the evidence in paragraph 4 of 616 in the sentence “She didn’t even have the strength …”

I disallow paragraph 5 on 616. I find that it should not be admitted under s 137 of the Act.

Objection is taken to the last two paragraphs on 617. In my opinion they are admissible so long as the evidence is presented in an admissible form based on observations rather than opinions. Portions may be admissible under s 66A of the Act. There is to be no reference to psychiatric issues of the accused.

Otherwise the relationship evidence sought to be led by the Crown is admissible.

GEORGE PAWLAK[55]

[55]420-425.

The first two paragraphs on 423 are relied on by the Crown as relationship evidence.[56]
[56]Tr 103.

Paragraph 4 is subject to hearsay notice A 15 given by the Crown. I find that the evidence is relevant and it is admissible under s 65(2)(b) of the Act.

The relationship evidence is admissible.

MARIE LAZARIDIS[57]

[57]629-633.

The Crown has given a hearsay notice A 23 in relation to paragraphs 2 and 6 on 630 and C 6 in relation to paragraph 2 on 631. The Crown says it is relevant relationship evidence. I accept that contention.

The Crown also relies on paragraphs 4 and 5 on 631 as relationship evidence.

The accused objects to the admission of para 6 on 631 about the police turning up. I disallow the admission of this evidence. There is evidence the police turned up on matters not relating to the relationship of the accused and the deceased.

Otherwise, I allow the hearsay evidence under s 65(2) and the other relationship evidence the Crown seeks to lead.

G A HUNTER[58]

[58]841-842.

The Crown has given hearsay notice A 11 in relation to this police officer’s evidence about attending on the accused and the deceased on 30 June 2007 but submitted that it was not hearsay but relationship evidence.

I will admit the evidence.

MONICA KUSNIERZ[59]

[59]883-884.

Monica Kusnierz is a leading senior constable of police.

The Crown have given hearsay notice A 11 relating to a complaint made by the deceased to leading senior constable Kusnierz on 25 July 2007. The complaint is recorded in her statement and at 887 in a family violence risk assessment and management report of 26 July 2007. The Crown contend that it is relevant relationship evidence and submit the hearsay evidence is admissible under s 66A in relation to her state of fear or s 65(2)(c) being highly reliable.

The accused states that leading senior constable initiated the legal process for an intervention order. The application is at 1169 by leading senior constable Kusnierz. The interim order is dated 11 September 2007 (1166). The intervention order is dated 19 September 2007 and expired on 19 September 2008 “unless extended or varied prior to that time.”(1167) On 14 March 2008, the accused applied to revoke the intervention order. (1168-1169)

The Crown does not seek to tender the intervention order as evidence of the complaint or to establish that the deceased was scared. The Crown contends the order is relevant to explain the deceased’s actions when she later goes to the police to allege that it is breached as referred to by constable Stone.[60]
[60]Tr 267 and 112.

The Crown alleges that to understand the complaint you need the background of the intervention order that prevents him drinking at home or being intoxicated at home. The Crown says that this evidence is relevant because when the accused becomes intoxicated at home he becomes aggressive.[61]
[61]Tr 269.

The accused objects to the tendering of the intervention order under s 91 of the Act. Section 91 provides:

S 91 Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

In my view, s 91 does not have the effect suggested by the accused. The existence of an intervention order is a matter distinct and separate from the facts that the court found in order to make the order.

The Crown seeks to lead evidence of the intervention order.

I rule that the hearsay evidence satisfies s 65(2)(c) and may be admitted as relevant relationship evidence. I find it is highly probable the representation is reliable.

ELSIE TOOMEY[62]

[62]818.

The Crown seeks to rely on the representation made by the deceased contained in the brief of evidence which is the subject of hearsay notice A 25. The brief contains a statement by the deceased made on 22 July 2008. The Crown will not be leading the statement about the knife.

The Crown contends the statement contains highly relevant relationship evidence. There is some minor physical aggression and evidence of fear of the accused by the deceased. The Crown submits that the representation was made shortly after the incident and is admissible under s 65(2)(b).

The accused refs to the summary of the charges in the brief at 825. The Crown says that it will not lead evidence of the charge.[63]
[63]Tr 246.

The accused contends that the representation can not be lead through constable Toomey as it was made to constable Billing. The accused says that the statement to the police in pursuance of a breach of an intervention order is not a statement which would satisfy s 65(2)(b) or (c) of the Act. The accused says that when Marie Lazaridis refers to the same incident she didn’t mention anything about the accused pushing the deceased with his arm on her arm. He says it can not be said to be reliable.

The matters in the statement are relevant relationship evidence. In my view the statement of the accused was made shortly after the asserted fact occurred and in circumstances which make it unlikely that the representation is a fabrication. If the Crown is able to produce a person who saw heard or otherwise perceived the representation being made, then I will allow its admission.

CASSY STONE[64]

[64]811-812.

The Crown seeks to lead evidence of senior constable Stone of a complaint made by the deceased on 4 November 2008 about the accused’s drinking. The Crown contends the evidence is relevant relationship evidence. Insofar as it is hearsay, the Crown has given hearsay notice A 27 and relies on s 65(2)(b) or (c) of the Act. The statement also contains evidence of a conversation with the accused.

The accused contends that the feelings of the police officer who advised both the accused and the deceased to consider marriage counselling are not relevant. I agree. That evidence should not be led.

The accused contends that the hearsay evidence that Cassy Stone could give does not satisfy s 65(2) (b) or (c) as the representation was made by the deceased where she believed there had been a breach of an intervention order and she was requesting that the accused by removed from the home as result of the breach. The accused says that in those circumstances the representation does not satisfy the requirement that it is unlikely that it is a fabrication or that it is highly probable that the representation is reliable.

In my view the representation was made shortly after the asserted fact. The fact would have been fresh in the deceased’s mind. I believe that the complaint to the police is a circumstance that makes it unlikely that the representation is a fabrication. I will allow the evidence as relationship evidence and, insofar as it is hearsay, allow its admission under s 65(2) (b).

MANDATORY EXCLUSION

In my view none of the relationship evidence I have allowed to be tendered should be excluded under s 137 of the Evidence Act 2008. In my view the evidence is of material probative value which is not outweighed by the danger of unfair prejudice to the accused.

USE OF HEARSAY EVIDENCE

Where I have admitted hearsay evidence pursuant to the hearsay notices, the evidence may only be used for the purposes proposed by the Crown in their notice setting out the purpose for which relationship evidence was tendered, save for the evidence of Mrs Wijas of the events of 25 January 2009, which is admissible in any event as being relevant to the events of the day of the death of the deceased.

[2010] VSC 465

15 October 2010