R v McDermott (Ruling No 1)
[2015] VSC 615
•9 November 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0195
| THE QUEEN | |
| v | |
| CRAIG McDERMOTT | Accused |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 26, 27, 28, 29 and 30 October 2015 |
DATE OF RULING: | 9 November 2015 |
CASE MAY BE CITED AS: | R v McDermott (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 615 |
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CRIMINAL LAW – Evidence – Admissibility – Hearsay – Exceptions to the hearsay rule Whether evidence is ‘visual identification evidence’ – use of CCTV for identification – circumstantial identification evidence – Whether evidence is second-hand hearsay – Application of the principles in Subramaniam v Public Prosecutor – Whether evidence is a representation that is a ‘fabrication’ – Whether witness is unavailable – Exclusion of evidence – Application of Dupas v R – relevant evidence – Evidence Act 2008 (Vic) ss 13, 55, 65, 66, 66A, 114, 115, 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kissane QC with Ms E Ruddle | Office of Public Prosecutions |
| For the Accused | Ms C Randazzo SC with Mr J Desmond | Doogue O’Brien George |
HIS HONOUR:
Introduction
Craig McDermott has been committed to stand trial for the murder of Fiona Warzywoda. Prior to the commencement of the trial, counsel for Mr McDermott made a series of applications relating to the admissibility of evidence. This ruling deals compositely with those applications.
Circumstances surrounding the death of Ms Warzywoda
Mr McDermott and Ms Warzywoda had been in a relationship for approximately 18 years. They had four children together: T, P, S and R.
In mid-February 2014, the relationship broke down after a family gathering in Bendigo.
On 17 February 2014, an intervention order was made against Mr McDermott at the Magistrates’ Court at Sunshine under the Family Violence Protection Act 2008 (‘FVPA’). Ms Warzywoda and the four children are identified as protected persons in the order.
On 24 March 2014, orders were made by the Federal Circuit Court in Melbourne, on Ms Warzywoda’s application, in relation to the residence of the four children and Mr McDermott’s contact with them.
Two days later, on 26 March 2014, a further intervention order was made against Mr McDermott at the Magistrates’ Court at Sunshine under the FVPA. This time the order was to remain in place until a final hearing set down for 16 April 2014.
On 15 April 2014, Ms Warzywoda and Mr McDermott attended the Federal Circuit Court in William Street, Melbourne, where, after hearing the evidence of a social worker, Manuela Galvao, orders were made by Judge Curtain in relation to the residence of the four children and the terms of Mr McDermott’s contact with them. Pursuant to the orders, Ms Warzywoda was permitted to reside in Bendigo with the children, and Mr McDermott’s contact was suspended until he complied with a series of conditions imposed by the Court.
The following day, 16 April 2014, Ms Warzywoda and Mr McDermott attended the Sunshine Magistrates’ Court for the hearing of the intervention order application against Mr McDermott. Ultimately Mr McDermott consented to orders being made.
Subsequently, Ms Warzywoda left the court and attended the office of her solicitors, Marcou & Associates Lawyers, at Hampshire Road, Sunshine.
Between midday and 12.20pm that day, Mr McDermott was in the Sunshine shopping precinct in the company of his son (from a previous relationship), Dylan McDermott.
At about 12.20pm, on the footpath of Hampshire Road near the intersection with Devonshire Road Sunshine, Ms Warzywoda (who had just left her solicitor’s office) was fatally stabbed by Mr McDermott.
Ms Warzywoda suffered six wounds to the head, neck and upper left chest area inflicted by a 12.5cm kitchen knife.
After this incident, Mr McDermott drove his car to a construction site in Anderson Road, Sunshine, where he disposed of the knife. Investigating police subsequently retrieved it from the site.
The autopsy established that the cause of death was two stab wounds to the left side of Ms Warzywoda’s chest (11.5cm and 12.5cm deep respectively).
The prosecution and defence cases
The prosecution case is that the deteriorating relationship between the two led Mr McDermott, without provocation, to attack and kill Ms Warzywoda. Although not essential to its case, the prosecution also contends that Mr McDermott purchased the knife used to stab Ms Warzywoda from ‘Spare Change’, a shop located at 3 Dawson Street, Sunshine, at about 12.10pm.
The defence response filed on behalf of Mr McDermott reads as follows:
(a) the act/s which killed the deceased were not willed acts;
(b)the accused denies buying the knife at Spare Change as alleged; and
(c)he further denies entering into the Spare Change shop as alleged; and
(d)he denies having been in possession of the knife which killed the deceased as alleged; and
(e)the accused further says when he went to speak with the deceased it was the deceased who produced the knife and a struggle thereupon ensued; and
(f) as a consequent (sic) the issue of self-defence arises; and
(g)further, the accused says he did not intend to kill or cause really serious injury.
First issue: the Spare Change evidence
The prosecution seeks to adduce evidence leading to the conclusion that shortly prior to the altercation between Mr McDermott and Ms Warzywoda, Mr McDermott purchased the knife used in the stabbing of Ms Warzywoda from Spare Change. This shop is a short distance from where the encounter took place.
The prosecution relies upon a variety of strands of circumstantial evidence:
(a) a series of CCTV images[1] which place Mr McDermott and Dylan in the vicinity of Spare Change shortly prior to the incident;
[1]Photos 25 and 26 of Photobook I.
(b) the evidence of Dylan McDermott to the effect that both he and his father entered Spare Change and were present in the shop shortly prior to the incident;
(c) the evidence of the informant, Leigh Howse, as to the presence of this type of knife in aisle 14 of Spare Change;
(d) the evidence of Xiaoming Zhang, the proprietor of Spare Change, who produced a receipt timed at 12.10pm for the purchase of a 12.5cm knife;
(e) the evidence of pathologist Dr Jacqueline Lee, that Ms Warzywoda died as a result of two knife wounds;
(f) the evidence of scientist Peter Ross, who identified the knife retrieved from the Anderson Road worksite (which had on it Ms Warzywoda’s DNA) as being the same “product” (in respect of its size, breadth in millimetres, manufacturing process and characteristics) as that obtained by Mr Howse from Spare Change several days after the incident; and
(g) a number of witnesses who saw Mr McDermott stab Ms Warzywoda at approximately 12.20-12.25 pm.
This body of evidence (referred to as ‘the Spare Change evidence’) may be described as circumstantial identification evidence,[2] as opposed to positive identification evidence. In Festa v The Queen,[3] circumstantial identification evidence was described by McHugh J as follows:
Unfortunately, another class of evidence is sometimes called "circumstantial identification evidence". It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance – usually, but not always, weak – that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence.[4]
[2]See R v Clune (No 2) [1996] 1 VR 489.
[3](2001) 208 CLR 593.
[4]Ibid 610-611 [56] [Emphasis added].
Is the ‘Spare Change’ evidence probative?
Section 56 of the EvidenceAct 2008 (‘Evidence Act’) states that evidence that is relevant in a proceeding is admissible. Section 55(1) defines relevant evidence in the following terms:
The evidence that is relevant in the 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.
Counsel for Mr McDermott submits that the Spare Change evidence does not amount to relevant evidence. It has, it is argued, no probative value in determining a fact in issue in this trial. It follows that he seeks the exclusion of any evidence from Dylan, Mr Zhang and Mr Howse relating to Mr McDermott’s alleged purchase of the knife. Counsel contends that the Spare Change evidence was not capable of being used by a jury in reasoning that his client had purchased the knife.[5]
[5]Paragraph 2, written submissions on behalf of Mr McDermott.
I reject this submission.
First, I am not at all sure that the test posited by counsel for Mr McDermott is appropriate in an application in relation to the admissibility of evidence under s 55. Counsel relied on what was said by Kaye J in R v Martin[6] in determining whether a no case submission should be accepted. His Honour said in that situation:
[t]he test is whether a reasonable jury could reach the conclusion that any inference consistent with innocence was not reasonably open on the evidence.[7]
[6][2005] VSC 121.
[7]Ibid [48].
As is self-evident, his Honour’s ruling dealt with whether a case should, at the end of the trial, go to a jury based on the evidence adduced at the trial.
The question here, however, is not one of whether the case should go to the jury but whether the evidence is relevant and admissible under s 55. Reference to cases decided before the introduction of the Evidence Act, and dealing with a no case submission, is not to the point. The test for admissibility of the evidence is that postulated by s 55(1) of the Evidence Act.
In Washer v Western Australia,[8] Gleeson CJ, Heydon and Crennan JJ said of s 55:
In order to establish relevance, it is necessary to point to the process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of the fact in issue at the trial.[9]
[8](2007) 234 CLR 492.
[9]Ibid 498 [5].
I have set out at [18] the chain of events which would enable a jury to infer that Mr McDermott had purchased the knife. The evidence of Dylan is of particular significance as it identifies Mr McDermott being inside the shop shortly prior to the incident. It can be inferred from his evidence that his father had the opportunity to purchase the knife.
Second, the alleged purchase of the knife is anything but peripheral to the issues in the case. It is a ‘fact in issue’ and goes to the heart of Mr McDermott’s defence, including:
(a) Mr McDermott’s intention when, as the prosecution assert, he confronted the deceased;
(b) whether Mr McDermott’s actions were ‘conscious, voluntary and deliberate’; and
(c) who was in possession of the knife at the time of the incident (the accused’s self-defence plea is predicated upon the jury accepting that Ms Warzywoda was in possession of the knife at the time the altercation between the two occurred).
Accordingly, I do not accept the submission that the Spare Change evidence is irrelevant to a fact in issue in the trial. Indeed, I take quite the opposite view.
Should the Spare Change evidence be excluded under s 137?
Section 137 of the Evidence Act provides:
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 defendant.
‘Probative value’ is defined in the dictionary of the Evidence Act as follows:
‘probative value’ of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
In Dupas v R,[10] the Court of Appeal said:
[10](2012) 40 VR 182 (‘Dupas’).
For the following reasons, we are compelled to the view that Shamouil and the other decisions that have applied it are manifestly wrong and should not be followed. We are compelled to the conclusion that we should depart from the reasoning and conclusion in Shamouil as error can be demonstrated with a degree of clarity by the application of the correct legal analysis. Our conclusions are as follows:
(a)The common law did require the trial judge, in assessing probative value, to evaluate the weight that the jury could rationally attach to the evidence. The contrary conclusion was inconsistent with a continuous line of High Court authority.
(b)The legislative intention, as disclosed by the language of s 137 and its context, is that the task under s 137 is the same as that at common law.
(c)The trial judge undertaking the balancing task is only obliged to assume that the jury will accept the evidence to be truthful but is not required to make an assumption that its reliability will be accepted. The phrase ‘taken at its highest’ is more appropriately used in considering a no case submission, when the judge must accept that the jury may find the evidence credible and reliable.
(d)In order to determine the capacity of the evidence rationally to affect the determination of a fact in issue, the judge is required to make some assessment of the weight that the jury could, acting reasonably, give to that evidence. Where it is contended that the quality or frailties of the evidence would result in the jury attaching more weight to the evidence than it deserved, the trial judge is obliged to assess the extent of the risk. That does not require the trial judge to anticipate the weight that the jury would or will attach to it. The judge is obliged to assess what probative value the jury could assign to the evidence, against which must be balanced the risk that the jury will give the evidence disproportionate weight.
(e)So to construe s 137 accords with the language of the statute and its context. To construe it otherwise does not.
(f)Such a construction does not involve any enlargement of the powers of a trial judge or any encroachment upon the traditional jury function.[11]
[11]Ibid [63].
Trial judges have applied Dupas by conducting a ‘balancing exercise’ comprising three steps:
(a) an assessment of the probative value of the evidence; and
(b) an assessment of the prejudicial effect of the evidence; and
(c) a weighing up of the two to evaluate whether the danger of unfair prejudice outweighs the probative value.[12]
[12]See for example DPP v Preston (Ruling No 3) [2015] VSC 397, [15].
In a case involving a large number of witnesses, there are real problems for a trial judge in the practical application of this test prior to the commencement of a trial, namely:
(a) endeavouring to distinguish effectively between ‘reliability’ and ‘honesty’;
(b) the lengthy and, at times highly complicated process involved in assessing the weight which a jury could give to a particular piece of evidence.[13] In this case it was necessary to go through depositions (statements and cross-examination at the committal), and evidence on a Basha inquiry.[14] Then it was necessary to consider submissions by both parties involving the cross referencing of evidence given by a number of witnesses with a view to establishing unreliability or the contrary; and
(c) the need to provide a ruling on each of the submissions.
[13]See the discussion on this issue by the Honourable Justice Dyson Heydon AC QC in “Is the weight of evidence material to its admissibility” (2014) 26(2) Current Issues in Criminal Justice, 219.
[14]See procedure for taking evidence under s 198 of the Criminal Procedure Act 2009.
I should add that on these applications the pre-trial exercise has been enlarged by the necessity to determine the applicability of ss 65, 66 and 66A of the Evidence Act (exceptions to the hearsay rule) to a number of hearsay statements.
Returning to the specific exercise I am now required to carry out it is not necessary for me to repeat the matters I dealt with relating to the relevance of the Spare Change evidence. In my opinion, it is of real importance in both establishing the prosecution case as to the intent of Mr McDermott and negating his self-defence plea.
Whilst there may be ‘bits and pieces’ of Dylan’s evidence which can be attacked as being unreliable (as demonstrated by counsel in submissions), the constant thread of his evidence (both in his second statement and at the committal) is that his father went into Spare Change and, whilst there, had the opportunity to purchase the knife. That is one piece of the circumstantial puzzle. The Spare Change evidence remains of high probative value.
In DPP v Preston,[15] Macaulay J said of the expression ‘danger of unfair prejudice’:
As to the ‘danger of unfair prejudice’, that phrase is to be construed to mean a ‘real’ risk that the evidence will be misused by the jury in some way and that the risk will remain notwithstanding proper directions given to them. In Dupas, the Court of Appeal expanded upon the notion of the risk of misuse by the jury saying:
It may arise where there is a danger that the jury will adopt “an illegitimate form of reasoning” or “misjudge” the weight to be given to particular evidence. An inability to test the reliability of evidence may carry with it the danger of such misjudgement. Evidence is not unfairly prejudicial because it inculpates the accused.[16]
[15]DPP v Preston (Ruling No 3) [2015] VSC 397.
[16]Ibid [18].
As I see it, there is no substantive unfair prejudice provided the jury is given appropriate directions as to the use it can make of the Spare Change evidence before it is satisfied that the circumstantial case as to the purchase of the knife is made out. Standard directions as to the avoidance of speculation and the need to be satisfied of the elements of the offence beyond reasonable doubt[17] should ensure that any risk of unfair prejudice is minimised.
[17]See Part 7 of the Jury Directions Act 2015.
The risk of unfair prejudice arising out of the Spare Change evidence does not outweigh its probative value. The evidence is admissible, as is any other evidence surrounding the alleged purchase of the knife.
Second issue: the intervention orders and Federal Circuit Court orders
The prosecution seeks to tender certified extracts of the orders from the register of orders made in the Sunshine Magistrates’ Court pursuant to the FVPA on 17 February 2014, 26 March 2014 and 16 April 2014 and the orders made in the Federal Circuit Court on 24 March 2014, 14 April 2014 and 15 April 2014.
The orders, it was argued by the prosecution, provide the contextual framework for the jury to analyse the deterioration in the relationship between Mr McDermott and Ms Warzywoda in the period following their separation on
17 February 2014 to the date of Ms Warzywoda’s death on 16 April 2014. Below is a table which sets out the terms of the orders.
Date
Event
17 February 2014
Sunshine Magistrates’ Court (Magistrate Toohey) orders, under the FVPA, that Mr McDermott ‘not commit family violence’ against Ms Warzywoda and their children T, P, S and R.
24 March 2014
The Federal Circuit Court (Judge Curtain) orders by ‘consent’ that:
· Mr McDermott return the three youngest children by 5:00 pm that day;
· all four McDermott children reside with Ms Warzywoda; and
· the children spend time with Mr McDermott each Sunday from 2:00pm–7:00pm, each Wednesday after school until 7:00pm and at such other times as agreed between Mr McDermott and Ms Warzywoda.
The orders also provide that Ms Warzywoda have sole use and occupancy of the property at Melton West (where they jointly resided previously).
26 March 2014
The Sunshine Magistrates’ Court (Magistrate Toohey) makes orders, under the FVPA, that Mr McDermott ‘not commit family violence’ against Ms Warzywoda and their four children.
The orders are extended to prevent Mr McDermott from going to or remaining within 200m of the property at Melton West.
The interim orders are to remain in force until a final hearing.
The application is adjourned to 16 April 2014.
14 April 2014
The Federal Circuit Court (Judge Curtain) orders that the parties attend a family consultant on the following day for a Child Inclusive Conference.
15 April 2014
The Federal Circuit Court (Judge Curtain) orders that:
· the four children reside with Ms Warzywoda;
· Ms Warzywoda be permitted to reside in Bendigo and be able to enrol the children in school in Bendigo; and
· Mr McDermott’s time be reserved and that his spending time with the children be supervised.
16 April 2014
The Sunshine Magistrates’ Court (Magistrate Myall) varies, by consent, the previous orders and makes a final order preventing Mr McDermott from going or remaining within 200m of any place where Ms Warzywoda or the children live, work or attend school.
In a case such as this, relationship and contextual evidence is of considerable significance. It is helpful to refer to what was said by Menzies J in Wilson v R:[18]
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 the wife in the course of the quarrel should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statement was causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mis-chance.[19]
[18](1970) 123 CLR 334.
[19]Ibid 344.
Counsel for Mr McDermott contends that this evidence should be excluded on two bases. First, that it is not probative of any fact in issue at the trial and second, that its prejudicial effect outweighs any probative value.
Is the evidence of the orders relevant to a fact in issue?
The first point can be disposed of summarily. The ‘flashpoints’ leading to Mr McDermott’s alleged attack on Ms Warzywoda, on the prosecution case, were the court hearings on 15 and 16 April 2014.
To understand the escalating problems after 17 February 2014, it is necessary for the jury, so the argument goes, to understand the orders made by the courts and the effect that those orders had upon Mr McDermott. It is this, the prosecution contends, that provides the context for his increasing anger with his former partner.
I accept the submissions of the prosecution. This evidence is patently relevant. It goes directly to a number of important issues at the trial, namely:
(a) Mr McDermott’s intent in relation to the alleged attack upon Ms Warzywoda;
(b) whether his actions at the time of the alleged attack were ‘conscious, voluntary and deliberate’; and
(c) whether he may have acted in self-defence, rather than being the perpetrator of the crime.
To my mind the real issue is the second point, namely that of the s 137 evaluation.
Should the evidence be excluded under s 137?
This evidence is of significant probative value to the prosecution case. It would be impossible for the jury to understand the circumstances surrounding the events at the Federal Circuit Court and Sunshine Magistrates’ Court on 14 and 15 April 2014 respectively, without some knowledge of the history of the Court proceedings and the orders made relating to intervention and the residence of the children.
There is no question here of unreliability.
The issue of unfair prejudice is not as simple. The extracts of the Sunshine Magistrates’ Court FVPA orders contain references to physical violence and the terms of the FVPA. This may lead a jury to infer that Mr McDermott had, in fact, committed physical violence towards Ms Warzywoda.
The orders of the Federal Circuit Court do not give rise to such an inference. However, they contain some irrelevant and potentially prejudicial material such as references to Mr McDermott undergoing ‘drug tests’ and restraining him from ‘the possession and use of illegal drugs’. I also think that the pro-forma attachment to the orders will distract from, rather than enhance, the jury’s task.
There is some force in counsel for Mr McDermott’s submission that a jury may reason from the entire text of the FVPA and Federal Circuit Court orders that his client had a propensity for violence or bad conduct prior to Ms Warzywoda’s death. This impermissible reasoning may be ameliorated by an appropriate direction to the jury. However I think it is also appropriate to either redact the orders or arrange for an agreed table of orders to be tendered consistent with these reasons. The parties should endeavour to agree the form in which this material is to go to the jury. Failing agreement, I will give directions as to the manner in which the jury will receive this evidence.
Although it did not form part of the material sought to be led by the prosecution, I would permit Mr McDermott (if he so wishes) to include in the material to go to the jury, details of the two applications listed below.
Date Event 9 April 2014 Mr McDermott makes application to vary the IVO made 26 March 2014 to enable him to clear out the former family home for sale without contravening the order. 10 April 2014 Mr McDermott makes application in the Federal Circuit Court seeking shared parenting which was listed for directions on 12 May 2014. Third issue: Mr Mohammed’s identification of an aggressive man
Sharaf Mohammed was employed as a security officer working at the Commonwealth Law Courts building at William Street, Melbourne on 15 April 2014 (the day before Ms Warzywoda died). His evidence (as taken from his statement to police made on 22 April 2014) will be to the following effect.
During the afternoon of 15 April 2014, Mr Mohammed became aware of a man who, on Mr Mohammed’s account, was yelling and ‘acting aggressively.’[20] Mr Mohammed observed that the man in question was ‘with another man who was holding onto him at times and telling him to calm down’,[21] and that these men were accompanied by two women, whom Mr Mohammed took to be solicitors.[22] The ‘aggressive’ man and his companion walked past Mr Mohammed on their way out of the building, and as they did so, Mr Mohammed heard the ‘aggressive man’ say ‘I’m going to slice her’.[23]
[20]Statement of Sharaf Mohammed dated 22 April 2014, [6].
[21]Ibid [7].
[22]Ibid [9].
[23]Ibid [11].
Nearly two months later, Mr Mohammed was, for the first time, shown CCTV footage from the area of the Commonwealth Law Courts building where he was working at the approximate time of the above incident. In his second statement of 13 June 2014 (made after viewing the CCTV footage), Mr Mohammed identified the man in the CCTV footage as the ‘aggressive man’ who made the statement.
The prosecution will, at trial, invite the jury to conclude that it was Mr McDermott who made the ‘slice her’ statement.
The prosecution contends that this evidence is relevant:
(a) to the intent and motive of Mr McDermott; and
(b) to negate the suggestion that the attack involved non-voluntary acts and/or was in self-defence.
Counsel for Mr McDermott conceded that on 15 April 2014, Mr McDermott was at the Commonwealth Law Courts, and that the CCTV depicts him in the company of and talking to his brother and two female solicitors. He also accepts that his client was, as shown on the CCTV footage, at times upset and angry.
The prosecution argued that counsel for Mr McDermott had confined his argument concerning the identification evidence of Mr Mohammed to admissibility under s 137. However, notwithstanding what may have been said by counsel for Mr McDermott in discussion, it is clear from the written submissions that there are two discrete arguments: one as to admissibility under ss 114 and 115; the other as to the exercise of the s 137 discretion.
Is the evidence precluded by ss 114 and 115 of the Evidence Act?
The relevant provisions read as follows:
114 Exclusion of visual identification evidence
(1)In this section, visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.
(2)Visual identification evidence adduced by the prosecutor is not admissible unless—
(a)an identification parade that included the accused was held before the identification was made; or
(b)it would not have been reasonable to have held such a parade; or
(c) the accused refused to take part in such a parade—
and the identification was made without the person who made it having been intentionally influenced to identify the accused.
….
115 Exclusion of evidence of identification by pictures
(1)In this section, picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.
(2)Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.
(3)Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if—
(a)when the pictures were examined, the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged; and
(b)the picture of the accused that was examined was made before the accused was taken into that police custody.
(4) Subsection (3) does not apply if –
(a) the appearance of the accused had changed significantly between the time when the offence was committed and the time when the accused was taken into custody; or
(b) it was not reasonably practicable to make a picture of the accused after the accused was taken into that custody.
For ss 114 or 115 to be engaged it must be established that the evidence is ‘visual identification evidence’.
‘Identification evidence’ is defined in the dictionary of the Evidence Act, as follows:
identification evidence means evidence that is—
(a)an assertion by a person to the effect that an accused was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where—
(i)the offence for which the accused is being prosecuted was committed; or
(ii) an act connected to that offence was done—
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or
(b)a report (whether oral or in writing) of such an assertion;
The primary submission on behalf of Mr McDermott is that ss 114 and 115 of the Evidence Act govern the use of the CCTV footage in carrying out the identification of Mr McDermott and that the prosecution has failed to comply with the requirements of either section. Alternatively (if this argument be rejected), it was said that the identification was so weak that it should be held to be inadmissible under s 137 given the risk of unfair prejudice generated by the evidence.
Counsel for Mr McDermott argues that s 114 establishes that where a witness identifies an individual out of court, evidence of that identification is not to be admitted unless the accused refused to take part in a line up, or it would be unreasonable to have a line up. Here, Mr McDermott (who was in custody) was not requested by police to take part in a line up, and therefore a ‘single video’ should not have been shown to Mr Mohammed without an identification line up.
It is then said that, generally, photographs of an arrested person should not be shown to a witness. The actual words used by the witness should be recorded, and the photo folder should be of persons of similar age and appearance to the suspect. There is no good reason not to apply the same consideration to the use of video evidence.
Counsel for Mr McDermott goes on to say that, consistent with the terms of s 114 and s 115, photo identification is not admissible if, when the photographs were examined, the accused was in the custody of police investigating the offence, unless the accused refused to take part in a line up or it would not be reasonable to hold a line up. Mr McDermott was in custody and had not refused to take part in a line up.
Finally, it is said that this identification is no more than ‘rank opinion evidence’, which was not subject to a proper visual identification procedure, as required by the Evidence Act.
The prosecution submits that ss 114 and 115 of the Evidence Act are not applicable to the admissibility of Mr Mohammed’s evidence.
The prosecution contends that the identification of the person shown in the video by Mr Mohammed simply amplifies the description provided by Mr Mohammed in his first statement. The CCTV footage is merely part of his evidence of what occurred on the day. The prosecution argues that whether the person Mr Mohammed ‘picks out’ in the CCTV footage is in fact Mr McDermott, is a matter for the jury; ss 114 and 115 are not engaged as this is not visual identification evidence.
The prosecution goes on to submit that Mr Mohammed’s evidence is more akin to recognition evidence than identification evidence. Mr Mohammed draws on the CCTV footage which shows what the person is doing over a period of time during which the witness was present. He is able to use all aspects of the video to make his second statement. He does not rely on facial identification but utilises all of the events leading up to the threat, including Mr McDermott’s behaviour.
On this basis, it is irrelevant whether there was a photo board, or whether the photo of Mr McDermott stood out. This is not evidence concerning photograph identification as provided by s 115 of the Evidence Act as it does not concern photographs kept for use of police officers.
I accept the prosecution argument that neither s 114 nor s 115 applies to the evidence of Mr Mohammed. These provisions are, in my opinion, not intended to cover the entire field of evidence relevant to identification or recognition. Rather their purpose is clear: to regulate the way in which two traditional forms of identification evidence, line ups and photo books, are to be conducted. Admittedly their terms may extend further than this purpose but certainly not to the regulation of all forms of identification of persons in custody as Mr McDermott’s submissions would imply.
In Trudgett v R,[24] the New South Wales Court of Appeal was concerned with identification of the alleged perpetrator of a sexual offence. The complainant did not identify the perpetrator as the defendant. Rather, there was evidence that the appellant was at the party, introduced to the complainant under the name of ‘Adam’ and that he entered and left the house where the assault occurred. The complainant’s evidence included a physical description; she said that the person who assaulted her was introduced to her as ‘Adam’ and ‘that was all she knew about him’.
[24](2008) 70 NSWLR 696.
It was argued, on appeal, that this evidence was identification evidence within the meaning of s 114.
The Court of Appeal held:
The complainant made no “assertion…to the effect that the appellant “was or resembles…a person”, namely the perpetrator. She gave no “identification evidence” within the meaning of the Dictionary definition.
In this regard the appellant’s submissions involve a confused use of the word “identification”. Of course the evidence of the introduction, when combined with the evidence next to be considered, assisted the jury to “identify” the appellant as the assailant. However that process is not “identification evidence” by a witness that has been admitted for the purpose of s 116.[25]
[25]Ibid [35]–[36].
For the evidence of Mr Mohammed to fall within the definition of identification evidence, there must be an assertion that the person who made the threat was Mr McDermott or, alternatively, resembled him. Mr Mohammed makes no such assertion. Rather, he says that a person whom he has not identified made the threat and described the circumstances in which it was made. He subsequently identified that person as being the man shown in the CCTV footage. Critically, he does not say that the person depicted in the video is Mr McDermott.
Indeed, this appears to be accepted by counsel for Mr McDermott who described Mr Mohammed’s identification in the following terms:
…he is purporting to do no more than say the man in the video (not seen making the threat) is the man I believe made the threat later.[26]
[26]Submissions filed on behalf of Mr McDermott dated 28 October 2015, [20].
To summarise, the prosecution uses the CCTV footage, in effect, to corroborate and, literally, illustrate the description of the man given by Mr Mohammed in his first statement. The evidence goes no further than that. It will be up to the jury using the description provided by Mr Mohammed in his first statement and the CCTV footage to determine whether the man who uttered the words was, in fact, Mr McDermott. The jury will take into account factors such as who he was with, his clothing, his movements, his stance and demeanour in reaching its conclusion. This is not identification evidence.
For completeness I note that s 115 refers specifically to photo books ‘kept for the use of police officers’. Here the photographic evidence is CCTV footage maintained by the security service at the Commonwealth Law Courts.
Finally, I reject the argument that Mr Mohammed’s evidence is opinion evidence. Mr Mohammed is not relying upon his training or experience to express an opinion as s 79 requires. Rather he is simply, as a matter of fact, describing the person who uttered the words.
In R v Drollett,[27] the New South Wales Court of Criminal Appeal held:
It is not at all uncommon for a witness to give evidence that a photograph or video depicts a particular place or scene as the witness observed it at some relevant time. Such evidence may include evidence that the film depicts an incident or event the subject of the litigation. Ordinarily, that evidence will be admitted as factual evidence, and its relevance will be apparent.
It is not difficult to envisage that a witness giving evidence of that kind may also be permitted to identify objects or persons depicted in such a scene which would not be readily (or at all) identifiable to the jury. One example is where the person depicted is photographed from the rear or partly obscured. A witness will be permitted to give evidence of that person’s identity. But this is evidence of fact. It is evidence of fact given from the witness’ recollection. The original or primary evidence, is, in reality, the description of the events given by the witness. The photographic material merely illustrates the oral testimony that the witness would be able to give describing the event in question.[28]
[27][2005] NSWCCA 356.
[28]Ibid [54]-[55].
This summary accurately describes the manner in which the prosecution in this case seeks to utilise the CCTV footage and the evidence of Mr Mohammed. That is, it is not Mr Mohammed’s opinion as to what is shown in the video, but his evidence as to what he heard and his description of the person who made the threat. It is a legitimate use of the evidence available to the prosecution in endeavouring to establish that it was Mr McDermott who made the threat.
In support of his argument about opinion evidence, counsel for Mr McDermott relies on the decision of the High Court in Smith v The Queen.[29]However, the plurality of the Court reached no conclusion about opinion evidence. Smith dealt with the evidence of two police officers who knew the accused and purported to identify him from security camera photographs. Putting aside the factual discrepancy, the decision stands for the proposition that their evidence did not satisfy the s 55 test of relevance.[30] The Court went on to say:
Because the witness’s assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness’s assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified.[31]
[29](2001) 206 CLR 650 (‘Smith’).
[30]Ibid [7]-[12].
[31]Ibid [11].
Indeed, this observation confirms that the exercise here is one of fact-finding by the jury and involves no question of opinion.
Mr Mohammed’s evidence is admissible subject to any s 137 consideration.
Should the evidence of Mr Mohammed be excluded pursuant to s 137?
The interaction between identification evidence, and s 137 was considered in Dupas. I have extracted at [32] the conclusion of the Court of Appeal in that case. The Court of Appeal at [79]–[115] undertook an extensive review of the authorities dealing with the exclusion of identification evidence. It is now clear that, in assessing the probative value of identification evidence in a s 137 inquiry, the Court must endeavour to assess the reliability of that evidence and determine its probative value. This is notwithstanding that the ultimate decision as to its use (assuming it is not excluded) will be for the jury to determine.
In Tasmania v Chatters,[32] the accused was alleged to have committed an armed robbery by robbing a man of his wallet whilst armed with a knife. Prior to the empanelment of the jury, Porter J was required to determine whether evidence of the identification by a police officer of the accused from CCTV footage taken at around the time, and near the location, of the robbery was admissible, and if so, whether it should be ‘excluded’ under s 137.
[32][2013] TASSC 61.
His Honour held:
The assessment of probative value is an assessment of a potential effect of the evidence in the sense of its capacity to advance the prosecution case. That assessment is made assuming that the evidence is accepted, and without speculating as to whether the jury would in fact accept the evidence or give it any particular weight: KMJ v Tasmania (2011) 20 Tas R 425; R v XY [2013] NSWCCA 121 per Basten JA at [66]–[67] (Hoeben CJ at CL, Simpson J agreeing). A reasonable jury could treat the evidence as directly establishing that the accused was the person who robbed [the victim]. Accordingly, the probative value of the evidence is very high.
The danger of unfair prejudice is said to lie in the identification by the wrong man, and that there was an opportunity for [the victim] to have become aware of the name of the accused. Additionally, it is said that there is the displacement effect arising from the identification from the CCTV footage of a particular person as the offender, along with the “rogues gallery“ effect of the photoboard procedure. It is said that alone, or more particularly by their cumulative effect, these matters give rise to an unacceptably high level of risk that the jury would not appreciate the care which needed to be exercised, and may misuse the evidence.
…
I have assessed the circumstances of the photoboard identification and the circumstances leading to it. No doubt a number of matters will be the subject of adverse criticism on the accused’s behalf before the jury. They include the identification by the complainant of the wrong man, his identification from the CCTV of a person as the offender before the photoboard identification, and the circumstances immediately surrounding the photoboard identification. But an assessment of suggested unreliability is not, as I have said, part of the s 137 exercise.[33]
[33]Ibid [18]-[19]; [26].
Whilst some parts of the above extract can be disregarded in light of the decision in Dupas, a number of other matters identified as relevant to a s 137 analysis are pertinent here.
In R v Lam (No 4),[34] Redlich J said of the admissibility of CCTV evidence under the common law (before the enactment of the Evidence Act):
The admission of video evidence taken from surveillance cameras is now commonplace. Video evidence is highly persuasive because of the perception as to its reliability. Jurors will regard themselves as competent to interpret video evidence. Consequently there is a danger of uncritical acceptance by the jury when video evidence is employed. A jury may be persuaded that what the prosecution claims is clearly shown on the tape and give insufficient weight to contradictory evidence in more traditional forms.
The discretion to exclude evidence will arise when it has been shown that the reception of the evidence will be unfair to the accused. In Ruling One in the present trial I considered the relationship between the scope of the general discretion to exclude evidence which would be unfair to the accused and the ‘Christie’ discretion to exclude evidence where its probative value was outweighed by its prejudicial effect. The degree of risk that the jury will attach more weight to such video evidence than is warranted in the circumstances will generally have to be assessed when reliance is placed upon the ‘Christie’ discretion.
…
If there are circumstances which may make the video evidence weak, unreliable or misleading, the question is whether those circumstances would be adequately exposed for the jury’s consideration, bearing in mind that to exclude such probative evidence would interfere with one of the most integral of the jury’s functions which, properly instructed, they are capable of performing.[35]
[34][2005] VSC 278.
[35]Ibid [2]-[3]; [13].
Finally, I return to the decision of the Court of Appeal in Dupas. The Court ultimately concluded that the identification evidence of the appellant by three witnesses, including one which arose from a witness seeing a photo of the accused in a newspaper, was sufficiently probative to outweigh any risk of unfair prejudice.
The criticisms of the reliability of Mr Mohammed’s evidence can be summarised as follows:[36]
[36]Written submissions filed on behalf of Mr McDermott dated 28 October 2015.
(a) Mr Mohammed was shown the relevant CCTV footage approximately two months after the charged incident;
(b) the CCTV footage shown to Mr Mohammed does not show the alleged threat being made;
(c) Mr Mohammed was not the subject of a proper visual identification procedure, in particular:
(i) the CCTV footage shown to Mr Mohammed consisted of a ‘single video’, showing ‘one aggressive man’;
(ii) Mr Mohammed was not shown a photo folder or a line-up (which would have been more appropriate in the circumstances); and
(iii) the context in which Mr Mohammed made the identification in the CCTV footage was one in which:
· homicide police were known to be investigating a death;
· there had been significant publicity and discussion following the death of Ms Warzywoda about the alleged murder (in particular in the Sunshine community); and
· Mr Mohammed had participated in discussions with court staff in the afternoon of 16 April 2014 in which ‘the aggressive man’ and ‘the stabbing’ were discussed.
On the other hand, there are a number of matters which, when considered with the evidence of the CCTV, enhance rather than detract from the reliability of Mr Mohammed’s first statement:
(a) the CCTV footage shows a man acting aggressively on the ground floor of the Commonwealth Law Courts building in the vicinity of Court 2A;
(b) the time specified by Mr Mohammed in his statement accords with the time that the ‘aggressive man’ is shown in the CCTV footage;
(c) the ‘aggressive man’ is in the company of another man who, at times, was holding onto him;
(d) the ‘aggressive man’ and his companion were dressed casually; and
(e) the ‘aggressive man’ and his companion were, at times, shown to be in the company of two women.
The dangers that are traditionally said to apply to identification evidence do not carry the same force with this body of evidence. This is not identification by way of a static photograph. In his first statement, Mr Mohammed described the movements, appearance and behaviour of the man who uttered the threat. He was then able to use this knowledge to point out that person on the CCTV footage.
I do not regard this body of evidence as being sufficiently unreliable as to seriously undermine its probative value. If the jury accepts that Mr McDermott made the threat then this evidence advances the prosecution case significantly as to motive and intent on the part of Mr McDermott.
Indeed, in my opinion, even without the CCTV footage, Mr Mohammed’s evidence would have been sufficiently probative to outweigh any prejudicial effect. This – as with the first issue – is a circumstantial identification, enhanced by the CCTV footage. As I just mentioned it is of considerable importance to the prosecution case as (if it is accepted that Mr McDermott made the threat) it demonstrates Mr McDermott’s animus towards Ms Warzywoda on the day prior to her death.
Any risk of unfair prejudice is ameliorated by an appropriate direction to the jury as to the uncertainties which surround evidence concerning identification and the use of the CCTV footage.
I reject the application by Mr McDermott that Mr Mohammed’s evidence should be excluded under s 137.
Fourth issue: the threat to kill with a pocket knife evidence
On 24 March 2014, Mr McDermott returned the youngest three children
(S, aged 8, P, aged 10 and R aged 5) to the car park of the Sunshine Police Station where the children were collected by their mother and uncle, Joshua Warzywoda.
P is now 11 years of age. P gave evidence on a VARE tape (and was then cross-examined on a Basha inquiry). P recounted a threat made by Mr McDermott in the car on 24 March 2014, in the following terms:
Okay. What did you hear dad say?‑‑‑I heard, I heard him say‑ he turned around from the driver’s seat and he looked at us and said he’s going to kill mum with a pocketknife. [37] (‘threat’)
[37]T357 -361.
The prosecution seek to adduce the threat as evidence of Mr McDermott’s violent intentions towards Ms Warzywoda.
Counsel for Mr McDermott argues that this statement, whilst probative, should be excluded pursuant to s 137 of the Evidence Act. I will return to this shortly.
The other part of P’s evidence relates to the deterioration of the relationship between Ms Warzywoda and Mr McDermott over the months following their separation in mid-February 2014, which is not the subject of contest.
S also gave evidence on a VARE interview about the threat in the following terms:
…then he said he wanted to kill mum with the pocketknife and he’s got it in the car…
S is now 9 years of age. S commenced giving evidence on a Basha inquiry but was unable to continue and the question of S’s availability at trial remains open.
R, who was aged five at the time, did not participate in a VARE interview.
The prosecution also seeks to lead hearsay evidence in relation to the threat from four other witnesses: T (the eldest child), Joshua Warzywoda (Ms Warzywoda’s brother), Liza Dearing (P’s primary school teacher at MW Primary School), and Manuela Galvao (Family Consultant at the Family Court who met with the family on 15 April 2015), all of whom say that P recounted the threat to them. T and Mr Warzywoda say that S also recounted the threat. Ms Galvao states that the threat was recounted to her by all three of the children.
The prosecution contends that each of these accounts is first-hand hearsay, and falls within an exception to the hearsay rule and is therefore admissible. The table below sets out the relevant representation and provision of the Evidence Act relied upon.
No. Representation Made on Evidence Act Joshua Warzywoda
184 P told us ‘Mum you know what, Dad pulled out a pocket knife and said he was going to kill you.’
24 March 2014, approx. 3.40pm after Ms Warzywoda picked up the children from the car park of the Sunshine Police Station s 66(2)(b) 185 S said the same thing [as P]
24 March 2014, approx. 3.40pm after Ms Warzywoda picked up the children from the car park of the Sunshine Police Station s 66 186 ‘We told Dad he can’t do, he's not allowed to do it.’ unclear s 66 T
223 ‘Q: did you talk to the kids about how things were – how things were with their dad? Yeah, they 'cause, like, you know, me and mum, like, were asking them like, ‘What has he, like, said to you?’ and stuff and he said to all of the younger kids that he was going to kill mum with a pocketknife and yeah, that's what they said.
Q: So which one of your siblings told you this?
A: It was either P or S. It was one of them.’
On the Basha Inquiry, T said it was I who told P of the threat.
24 March 2014, after Ms Warzywoda picked up the children from the car park of the Sunshine Police Station s 66(2)(b) 224 (sought to be admitted by counsel for Mr McDermott if 223 is admitted) ‘But mum just thought [the pocketknife threat] that it was like – she just thought that it was funny because, like, you know, some people, like, say that kind of stuff and they don’t do it. So she didn’t really think anything of it.’ 24 March 2014 Liza Dearing
230 and 231. ‘P proceeded to tell me the following things that occurred during the week P was with her dad but P couldn’t detail when and where exactly it all happened.
“Dad said that he was going to kill mum with the pocket knife in his car.”P said he may have said it on the Wednesday or Thursday, P wasn’t too sure.
S, the younger sibling, found the pocket knife in the car and S indicated to l that, that was the knife he was going to use to kill the mum.’
26 March 2014 s 66(2)(b) Manuela Galvao 74. ‘Whilst in the waiting area and preparing to be taken to the playroom, R voluntarily informed me that R’s father had threatened to kill R’s mother with a pocket knife.’ 15 April 2014, morning. s 65(2)(c) [The prosecution withdrew s 65(2)(b)] 78. R reported that R’s father had said ‘I'm going to kill your mother’ while showing them a pocket knife.
R reported that this had happened in the car.15 April 2014, morning. s 65(2)(c) [The prosecution withdrew s 65(2)(b)] 82. S reported that whilst in the care of S’s father in March 2014 ‘Dad said he loves Mum but he wants to kill her.’ 15 April 2014, morning. s 66(2)(b) 83. S reported that ‘Dad said he was going to kill Mum with the pocket knife. The pocket knife was in the car.’ 15 April 2014, morning. s 66(2)(b) 84. S reported that S said to her father ‘You can't kill our Mum — she's our Mum.’ 15 April 2014, morning. s 66(2)(b) 103. P stated ‘He said he was going to kill Mum with the pocket knife he had in the car.’ 15 April 2014, morning. s 66(2)(b) P: Direct evidence and hearsay representations 184, 186, 223, 230, 231 and 103
Counsel for Mr McDermott submitted that P’s statement to others as to P’s father’s words is second-hand hearsay as P was recounting to each of the witnesses what her father had said to P. As such the statements are inadmissible under s 66. Alternatively, if admitted under the s 66 exception, counsel submitted that this evidence should be excluded pursuant to s 137.
The submission as to second-hand hearsay is misconceived.
Critical to the assertion made by counsel for Mr McDermott is that the statement made by his client to P constitutes hearsay (first-hand) and that its repetition to other persons therefore amounts to second-hand hearsay.
However, the previous representation here (i.e. the threat) is not hearsay but direct evidence of Mr McDermott’s state of mind at that time.
As was explained by the Privy Council in the seminal decision of Subramaniam v Public Prosecutor,[38] in which threats made to the accused were, at first instance, held inadmissible:
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness, or if some other person in his presence this statement was made. [39]
[38][1956] 1 WLR 965.
[39]Ibid 970. See also Regina v Willis [1960] 1 WLR 55.
So, P’s assertion that P’s father made the threat to kill P’s mother is not hearsay but is direct evidence of the making of the threat which is admissible without recourse to a hearsay exception.
It follows that the representation by P to other persons as to the making of the threat is first-hand hearsay which may be admissible under s 66. It is led by the prosecution to prove the fact that the words were uttered by Mr McDermott and no more. That is the relevant representation for the purpose of the exception.
I should mention that if I am wrong in this conclusion, and the statement (representation) of Mr McDermott is hearsay, it is admissible as an admission by Mr McDermott under s 81(2). That of course would not save the hearsay statements, to which I now turn.
Section 59(1) of the Evidence Act reads as follows:
Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
However, the Evidence Act then permits certain exceptions in the case of first-hand hearsay.
Section 66 which is relied upon for this group of representations reads as follows:
66 Exception—criminal proceedings if maker available
(1)This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2)If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a) that person; or
(b)a person who saw, heard or otherwise perceived the representation being made—
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
(2A)In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including—
(a) the nature of the event concerned; and
(b) the age and health of the person; and
(c)the period of time between the occurrence of the asserted fact and the making of the representation.
(3)If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.
(4)A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
The prosecution contends that each of these statements satisfy the ‘fresh in the memory’ test set out in (2) and (2A) and are therefore admissible.
In my opinion, each of the statements can properly be regarded as being ‘fresh in P’s memory’. In effect, over a period of nearly two months P recounted on four occasions a consistent version of what P’s father had said. None are remote in time; the event clearly had a significant impact upon P, as was clear from her evidence at the Basha inquiry. It was a significant statement particularly in the context of the deteriorating relationship between P’s parents. Notwithstanding P’s age, P gave a cogent account of P’s father’s words.
I accept that the ‘fresh in the memory’ test has been satisfied and that the terms of s 66(2) are therefore met to enable the admission of representations 184, 230, 231, and 103, subject to any s 137 exception.
The prosecution seeks to lead evidence from P in the form of representation 186 to P’s uncle, Joshua Warzywoda. However it is unclear that this representation was made by P. More fundamentally the statement does not purport to be an account of what was said by Mr McDermott, rather it is what was said by one of the children to him. It is not admissible.
The prosecution also seeks to lead evidence from P in the form of representation 223 to her sister T. The representation contained in P’s statement is attributed to either P or S. However, at the Basha inquiry T said that it was P who told T of the threat.[40] I accept that correction.
[40]T397.
This statement was made within hours of P leaving P’s father’s car. The ‘fresh in memory’ test is satisfied and therefore representation 223 is admissible.
Having determined that both P’s direct evidence as to what was said and the hearsay statements I have identified are admissible, the next question is whether all, or any part of it should be excluded under s 137.
P’s direct evidence is clearly probative of Mr McDermott’s antipathy towards his ex-partner. It also forms part of the relationship and contextual evidence which the prosecution seeks to adduce.
It was made clear in the course of both cross-examination of P and oral submissions that counsel for Mr McDermott will attack the evidence of the children as to the threat to kill on the basis that it is a concoction, probably initiated by their mother as part of the dispute with Mr McDermott over the children.[41]
[41]T283–284, 399, 444 and 488.
In those circumstances, the hearsay statements made by P are of considerable probative value. The earlier statements made to Mr Warzywoda and T (representations 184 and 223) were made within a very short time of the threat being made. There is a consistency in the statements within P’s VARE interview and P’s evidence on the Basha inquiry. The subsequent statements (representations 230, 231 and 103 – made to the teacher, Ms Dearing and the counsellor, Ms Galvao) whilst later in time, are also consistent with the earlier statements and P’s evidence at the Basha inquiry. There is, in my opinion, no real issue of unreliability and any question of honesty is a matter for the jury[42].
[42]See Dupas, [63].
As to the risk of unfair prejudice, providing the jury with appropriate directions concerning the use that can be made of P’s direct and hearsay evidence, should ensure that any risk of unfair prejudice is minimised.
The probative value of the direct evidence and the hearsay statements outweighs the risk of unfair prejudice.
S: Direct evidence and hearsay representations 185, 82, 83 and 84
As I mentioned earlier, S participated in a VARE interview and recounts S’s father’s statement in similar terms to that of P.
At the commencement of the Basha inquiry, S broke down when asked S’s name and was unable to give evidence. Consistent with my conclusion as to P’s evidence as to what P heard said in the car by her father, S’s direct evidence would prima facie be admissible subject to a s 137 argument.
Representations 185, 82, 83 and 84 clearly refer to accounts given by S to others.
The prosecution seeks to adduce evidence of these representations under s 66(2)(b) on the basis that the maker (S) is available.
However, at the present time it is not known whether S will be available to give evidence at the trial. Accordingly, the application involving the representations made by S cannot be determined until it is known whether S will or will not be available to give evidence.
Finally I note that representation 186 is inadmissible as discussed earlier. Representation 223 relates to P.
R: hearsay representations 74 and 78
The prosecution initially sought to adduce this evidence under the exception provided by s 66(2)(b), but ultimately relied upon the exception contained in s 65(2)(c).
The relevant provisions of s 65 of the Evidence Act are:
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.
(3)The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the accused in the proceeding to which this section is being applied—
(a)cross-examined the person who made the representation about it; or
(b)had a reasonable opportunity to cross-examine the person who made the representation about it.
(4)If there is more than one accused in the criminal proceeding, evidence of a previous representation that—
(a) is given in an Australian or overseas proceeding; and
(b)is admitted into evidence in the criminal proceeding because of subsection (3)—
cannot be used against an accused who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.
(5)For the purposes of subsections (3) and (4), an accused is taken to have had a reasonable opportunity to cross-examine a person if the accused was not present at a time when the cross-examination of a person might have been conducted but—
(a) could reasonably have been present at that time; and
(b) if present could have cross-examined the person.
(6)Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by—
(a)the person to whom, or the court or other body to which, the representation was made; or
(b)if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or
(c)the person or body responsible for producing the transcript or recording.
(7)Without limiting subsection (2)(d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends—
(a) to damage the person's reputation; or
(b)to show that the person has committed an offence for which the person has not been convicted; or
(c) to show that the person is liable in an action for damages.
(8) The hearsay rule does not apply to—
(a)evidence of a previous representation adduced by an accused if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or
(b)a document tendered as evidence by an accused so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
(9)If evidence of a previous representation about a matter has been adduced by an accused and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that—
(a) is adduced by another party; and
(b)is given by a person who saw, heard or otherwise perceived the other representation being made.
Counsel for Mr McDermott took what on the face of it was a wholly unmeritorious point: that the prosecution has not established that R, who is now six years old, is not ‘unavailable’ and therefore the threshold requirement for admissibility under s 66 is not made out.
As I mentioned earlier, R (who was aged five at the time of R’s mother’s death) did not participate in a VARE interview. He did not give evidence at the committal and by reason of R’s age, the prosecution will not call R to give evidence at the trial. Therefore, the prosecution argues that R is ‘unavailable’ under the Evidence Act and is not competent to give sworn evidence.
‘Unavailability of persons’ is defined at cl 4(b) of the Evidence Act dictionary as follows:
…a person is taken not to available to give evidence about a fact if -
(a) the person is dead; or
(b) the person is, for any reason other than the application of section 16 (Competence and compellability – judges and jurors), not competent to give the evidence about the fact;
…
The definition of competence is then explained at s 13 of the Act which states that:
(1)A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability)—
(a)the person does not have the capacity to understand a question about the fact; or
(b)the person does not have the capacity to give an answer that can be understood to a question about the fact—
and that incapacity cannot be overcome.
(2)A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.
(3)A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
(4)A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.
(5)A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person—
(a) that it is important to tell the truth; and
(b)that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and
(c)that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.
(6)It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
The debate as to whether R is an unavailable witness is not easy to resolve. Counsel referred me to a number of authorities. Notwithstanding my desire to add to the body of jurisprudence on this issue, I think it is appropriate at this juncture to determine the admissibility of R’s hearsay evidence by reference to s 137, which is also relied upon by counsel for Mr McDermott.
In my opinion, if the hearsay evidence of R contained in representations 74 and 78 is admissible, it should be excluded under s 137 for the following reasons.
First, given R’s age at the time and R’s place in the family (the youngest of the children), there is a real risk of unreliability.
Second, there has not been an opportunity to evaluate R’s evidence for reliability as R was not called at committal and, unlike S and P, R did not participate in a VARE interview.
Third it is not clear whether Ms Galvao, at the family conference on 15 April 2014 for the purpose of the Family Law Act application, gave R a warning to tell the truth, in the form of those given to the older children by the interviewing officer in the VARE interview. I make no criticism of Ms Galvao as her role was to evaluate the relationship between the parents and the children.
Ultimately, there is particularly limited probative value in R’s hearsay statements (as opposed to those of his elder sibling P). On the other hand, there is a real risk of unfair prejudice in that the jury might attach more weight to these statements than they deserve-if they merit any.
R’s statements should be excluded under s 137.
Fifth issue: other statements made by P to Ms Dearing
Ms Dearing, it may be recalled, was P’s primary school teacher. She states that P made several remarks to her shortly after P returned to school in March 2014.
The table below identifies the hearsay representations the prosecution wishes to rely upon:
No. Representation Made on Evidence Act 228 P started by saying that she overheard Dad had told Dylan on the phone, to take P, S and R away. She heard the father say ’Take them far away so they can’t get us’ 26 March 2014 s 66(2)(b) 232 There was an occasion where he wouldn't let P out of the car. P threatened to stab P with the pocket knife if he didn’t let P out of the car 26 March 2014 s 66(2)(b)
I cannot see any probative force in these representations. Both fail the relevance test under s 55. The fact in issue here is the relationship between P’s parents and particularly P’s father’s attitude towards her mother. The representations relate to:
(a) Mr McDermott’s desire to have custody of his children; and
(b) P’s reaction to P’s father’s behaviour.
Neither is relevant, and if I am wrong, the probative value of these statements is minimal. It is well outweighed by the unfair prejudice it would cause and I would exclude both statements under s 137.
Sixth issue: hearsay evidence that Mr McDermott said ‘you’re fucked’ to
Ms Warzywoda at the Sunshine Magistrates’ Court on 16 April 2014
Ms Warzywoda attended the Sunshine Magistrates’ Court on the morning of
16 April 2014 to obtain an extension of the FVPA order. Mr McDermott, accompanied by his son Dylan, also attended court that morning.
Both Mr McDermott and Ms Warzywoda appeared before the magistrate and consented to the orders made, which are set out in detail at [42].
Ms Warzywoda told a number of persons that whilst at Court that morning, Mr McDermott said to her ‘you’re fucked’.
Two witnesses, Karen Field and Karryn Salerno, are court staff who worked at the Family Violence Counter. Kim Robertson was the family violence case manager rostered at the Court that morning. The other witnesses are Bronwyn Doyle (Ms Warzywoda’s solicitor), Alison Unwin (a friend), and Joshua Warzywoda.
There is no reference to any threat being made in Dylan’s evidence (either in his statement and evidence at the committal).
The prosecution endeavours to lead this evidence under s 65(2)(b). The table below identifies the representations.
The ‘you’re fucked’ threat and Ms Warzywoda’s response No. Representation Made on Evidence Act Karen Field 140 ‘Not long after Craig left the counter Fiona approached and stated that Craig had threatened her by saying 'You're fucked.’’ 16 April 2014 at approx. 9.48am s 65(2)(b) Karryn Salerno 134 ‘About 10 minutes later Warzywoda came up to the counter, and advised us that McDermott had approached her and said ‘Your [sic] Fucked'.’ 16 April 2014 approx 9.48am s 65(2)(b) Robertson 152 ‘She told me he had said to her ‘Your [sic] fucked’ and that this had happened while she was within the court waiting area.’ 16 April 2014, approx. 11am s 65(2)(b) Josh Warzywoda 187 ‘At 10:03 AM Fiona texted me: what’s Polly’s address. I said [REDACTED]. She said ‘Thank you’, then ‘He walked past me, looked at me and said ‘you’re fucked.’’ 16 April 2014, between 10am and 10.20am s 65(2)(b) Alison Unwin 220 At 11:39 AM I received a text message from Fiona saying ‘He walked passed me and said to me you're fucked.’ 16 April 2014, 11.39am s 65(2)(b) Bronwyn Doyle 121 and 122 ‘Fiona said to me that Craig had threatened her at Court after the intervention order had been granted. She told me that he said to her ‘you’re fucked, I’ll get you.’ I asked her if that was inside the courtroom or outside and I think she said it was outside the courtroom but inside the court building.’ 16 April 2014 at approx. 12pm s 65(2)(b) 123 ‘She told me that she wanted to come back to see me first [after the property settlement] and then she would go to the police [to report the threat]. 16 April 2014 at approx. 12pm s 65(2)(b)
I have set out the provisions of s 65 of the Evidence Act at [141]. Essentially the prosecution seeks to lead this evidence on the basis that each representation was made shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication.
The evidence, primarily by way of CCTV, disclosed that Ms Warzywoda arrived at the court at 8.53am and Mr McDermott arrived at 9.45am. Ms Warzywoda reported the threat to Ms Field and Ms Salerno at approximately 9.48.
It follows that Ms Warzywoda’s first description of the threat to the Magistrates’ Court staff was made within minutes after the asserted fact (the threat) and then to Ms Robertson shortly thereafter. The other representations - made to friends, family and Ms Warzywoda’s solicitor - were made within a few hours.
Counsel for Mr McDermott submitted that Ms Warzywoda invented this threat and that it therefore fails the test under sub paragraph (b) of s 65.
Counsel sought to challenge the credibility of the representation by reference to the statements and the cross examination at the committal of two Protective Services Officers, Warren McCosh and Adam Van Lieshout, working at the Sunshine Magistrates’ Court on the day, as well as the evidence of Dylan.
The evidence of the two officers is that they did not see Mr McDermott interact with Ms Warzywoda. By reason of the timing of Ms Warzywoda’s interaction with the Protective Services Officers, it is argued that Mr McDermott did not have the opportunity to utter the words ‘you’re fucked’. Mr McCosh and Mr Van Lieshout also state that the threat was not reported to them (as Ms Warzywoda had been advised to do by Ms Field and Ms Salerno).
Counsel contends that the evidence of these two witnesses, when combined with the evidence of Dylan, leads to the conclusion that Ms Warzywoda invented this threat.
I reject that submission.
The evidence of the two officers does not, at least on paper, exclude the fact that there was opportunity for Mr McDermott to have made the threat to Ms Warzywoda. As I follow their evidence, they did not have Ms Warzywoda and Mr McDermott under constant observation; there is a real possibility (and perhaps, probability) of interaction at the relevant time which was not observed. Similarly, it is by no means clear that Dylan was in his father’s company for the entire time at the Court. Whether he was in a position to hear what was said by his father to Ms Warzywoda is uncertain. What matters, I think, is that Ms Warzywoda reported the statement to court staff and was referred to the family violence case manager.
The alleged remark was related to six witnesses within hours. Three witnesses - the court staff and the family violence case manager - were told of the remark at around the same time and in very similar terms. Of course, this may be consistent with a Machiavellian fabrication by Ms Warzywoda to assist her case. However, to my mind, it is more likely that it is consistent with an accurate recollection of a perceived threat which caused Ms Warzywoda sufficient concern to approach court staff.
It is probable that the description given to Ms Field and Ms Salerno by Ms Warzywoda at the counter was for the purpose of assisting her in determining how to deal with the threat. It is singular that there is no evidence that she relied upon the remark before the Magistrate to improve her position in relation to the extension of the intervention order. If this was the fabrication that counsel for Mr McDermott suggested, then it may be thought that the purpose of such a lie would have been to enhance her position in court that day.
It is to be remembered that s 65(2)(b) requires the court to be satisfied that it is unlikely that the alleged representation is a fabrication. In my opinion the evidence does not go so far as to establish that there is a reasonable possibility that Ms Warzywoda invented the threat. It is possible, of course, that she may have misunderstood what Mr McDermott had said but that is not the test. Ultimately, whether the threat was made will be a question for the jury. For present purposes, I am satisfied that the representations to the six witnesses are unlikely to have been fabrications and are admissible, subject to a s 137 determination.
The representations are patently of significant probative value. They were made a short time before Ms Warzywoda’s death and, as the prosecution will contend, by a man who was increasingly frustrated by the court process. They are directly relevant to Mr McDermott’s state of mind in the hours prior to the stabbing of his former partner.
The allegation that the representations were fabrications (with which I have just dealt) does not go to the reliability of the statements but rather to the credibility or honesty of Ms Warzywoda. The Court of Appeal in Dupas[43] made it clear that it is no function of the trial judge on a s 137 evaluation to assess the credibility of a witness. That is the function of the jury. It will be for the jury, as the trier of fact, to determine whether Ms Warzywoda invented this threat or whether it was genuinely made by Mr McDermott.
[43]Dupas, [63].
Counsel for Mr McDermott submitted that the words ‘you’re fucked’ are too ambiguous to have any true probative force. This submission has some weight if the words are viewed in isolation. However, the jury in determining Mr McDermott’s meaning will have all the circumstances to consider, including other threats (if accepted) and the events leading up to and on 16 April 2014. Particularly significant, it may be thought, was the effect of the orders of the previous day in the Federal Circuit Court, which, in a practical sense, precluded Mr McDermott from having contact with the children for some time.
Whilst there may be real forensic prejudice to Mr McDermott if the jury accepts that the threat was made, there is no unfair risk of prejudice.
Accordingly, these representations should not be excluded under s 137.
There remains for consideration the evidence of Ms Warzywoda’s solicitor, Ms Doyle, contained in representation 123 as to Ms Warzywoda’s declared intention to return to the solicitor’s office and then report the matter to the police. This representation is relevant to a fact in issue. The prosecution, in meeting
Mr McDermott’s self defence argument, may rely upon it as demonstrating an intention inconsistent with Ms Warzywoda contemplating an attack on
Mr McDermott after leaving the solicitor’s office.
Ms Doyle’s evidence is admissible without recourse to the hearsay exception. It is direct evidence of Ms Warzywoda’s state of mind at that time.
In any event, if it is not direct evidence, it satisfies the criteria under s 65(2)(b) as an exception to the hearsay rule.
No question of exclusion under s 137 arises. The representation is admissible.
Seventh Issue: Other proposed hearsay evidence concerning Mr McDermott.
The prosecution seeks to lead evidence of various statements made by Ms Warzywoda on 15 and 16 April 2014 concerning her relationship with Mr McDermott as well as a representation made by R concerning R’s father.
The table below identifies each representation:
Comments about the background to Mr McDermott’s domestic violence against the Deceased and children and the subsequent intervention order No. Representation Made on Evidence Act Manuela Galvao 21 Ms Warzywoda reported that the children were delivered to the Melton Police Station on 24 March 2014, in accordance with the Court Order. 15 April 2014, morning ss 65(2)(b) and (c) 32 She reported feeling ’very frightened because he told me how he thought of running the children off the road when driving.’
15 April 2014, morning ss 65(2)(b) and 66A 37 In response to how she saw the future, Ms Warzywoda said ’I don't want the kids to believe it’s OK to be knocked around by their partner, or for R to learn to treat women badly. I finally got pushed to the point of no return —I was unhappy and needed to stop the way things were.’
15 April 2014, morning s 66A 76 R reported that R’s father had taken R, S and P away. 15 April 2014, morning s 65(2)(c) [Prosecution withdrew s 65(2)(b)] Kim Robertson 150 ’She had attended Family Court the day before and they had ruled that Craig would have no contact with the children until he had had a mental health evaluation and drug testing.’ 16 April 2014, approx. 11am s 65(2)(c) Karryn Salerno 136 ’Warzywoda came up to the counter, she had her phone in her hand and said that her lawyer had been calling her and asking her to go to their office. She asked if she could leave court before getting the paper work. She asked if she could return after the lunch break to collect the paper work.’ 16 April 2014, approx. 12pm s 65(2)(b)
It is convenient to deal with each of these representations individually.
Representation 21 – Ms Warzywoda to Ms Galvao - The children were returned pursuant to a court order
This representation fails at the first hurdle: s 55. I am unable to see how this has any relevance to a fact in issue at the trial. At best, it might provide a tiny piece of relationship evidence. But as I see it, it has no real relevance to any fact in issue and should be excluded on that basis.
I note in passing that there is ample other evidence about the return of the children to Ms Warzywoda on 24 March 2014, as this was the occasion on which the alleged threat to kill was made by Mr McDermott.
Representation 32 – Ms Warzydoa to Ms Galvao – Very frightened because Mr McDermott thought of running the children off the road.
The prosecution seeks to lead this evidence under ss 65(2)(b) and 66A. I have set out the provisions of s 65 at [141].
Section 66A of the Evidence Act is as follows:
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.
This evidence is, if relevant, prima facie admissible as a contemporaneous representation of Ms Warzywoda’s feelings and state of mind under s 66A.
I accept that it has probative force in that it reflects the depth of the animosity between the two. However, in my opinion, this representation should be excluded under s 137. The probative value is minimal. While it shows that Mr McDermott made an assertion that frightened Ms Warzywoda, it is related to the safety of the four children and not to Ms Warzywoda’s personal safety.
This evidence poses a real risk of unfair prejudice. A jury may wrongly speculate that a person who was prepared to threaten his wife with injury to his children would not hesitate to inflict harm upon their mother.
I am satisfied that the unfair prejudicial value of this evidence significantly outweighs its probative value, which I regard as relatively minimal.
Representation 37 - Ms Warzywoda to Ms Galvao – I don’t want the kids to believe it’s okay to be knocked around.
I cannot fathom what issue of fact this is relevant to. Whilst it is a statement relevant to Ms Warzywoda’s state of mind, it amounts solely to a concern of Ms Warzywoda for her children and their upbringing. It contains a vague generalisation about the way in which her relationship with Mr McDermott had led to unhappiness. It has no probative force and does not satisfy the s 55 test.
Representation 76 – R to Ms Galvao – Mr McDermott had taken the kids away
As I mentioned earlier in relation to other representations by R, the prosecution seeks to lead this evidence under s 65(2)(c).
It is not necessary for me to repeat my observations as to R’s availability within the meaning of the Evidence Act. In this instance I am not persuaded that this representation is relevant to a fact in issue. It might have some contextual relevance, but that is minimal. I repeat that the fact in issue is that of the relationship between the mother and father. That the children had been taken away by their father is neither here nor there, particularly when it is known that the children were returned in accordance with the court order. As I understand it, Mr McDermott was not in breach of any court order in taking the children away.
If I were persuaded that this representation was probative, I would exclude it under s 137 in any event, given the risk that a jury may misuse this information and attach undue weight to its content.
Representation 150 – Ms Warzywoda to Ms Robertson – Mental health evaluation and drug test of Mr McDermott.
I do not understand how this representation is relevant to any fact in issue at the trial. Indeed, it appears to be a statement of Ms Warzywoda’s belief of the effect of the Federal Circuit Court orders. As far as I can tell, there is not a scintilla of a suggestion that it was the drug testing aspect of the orders made in the Federal Circuit Court that played any part in Mr McDermott’s alleged antipathy towards his wife. I propose to say no more about this representation as the parties have asked me not to rule upon this representation until the whole of this ruling is considered.
Representation 136 – Mrs Warzywoda to Ms Salerno – Return to the court after the lunch break.
This statement has some probative value.
It goes to Ms Warzywoda’s state of mind at the time that she left the Sunshine Magistrates’ Court on 16 April 2014 – that is, that she was planning to return to the Court to pick up necessary paperwork after speaking to her solicitor, whose office was a short distance away. It is relevant to Mr McDermott’s self-defence plea and whether Ms Warzywoda initiated the attack.
It also, arguably, has contextual relevance in informing the jury as to Ms Warzywoda’s intended movements after she left the Court.
I see no s 137 considerations which would preclude the admission of this representation.
Empanelment
I now propose to give the parties the remainder of the day to consider these rulings. The jury will be empanelled tomorrow morning.
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