R v McDonald (Ruling)

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No 1667 of 2009

THE QUEEN

JOHN VINCENT McDONALD

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	14, 15, 16 & 17 February 2011
DATE OF PUBLICATION OF WRITTEN REASONS:	7 June 2011
CASE MAY BE CITED AS:	R v McDonald (Ruling)
MEDIUM NEUTRAL CITATION:	[2011] VSC 241

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Evidence – Tendency evidence – Relationship evidence – Hearsay – Opinion evidence – Admissibility – Evidence Act 2008 ss 59, 62, 65(2)(b) and (c), 67, 76, 78, 97, 135, 137.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Horgan SC Mr J Dickie	Solicitor for Public Prosecutions
For the Accused	Mr A Lewis Ms P Murphy	Robert Stary Lawyers

HER HONOUR:

Introduction

The accused was charged with the murder of his estranged wife, Marlene McDonald, on or about 14 December 1986.

Prior to the empanelment of the jury, I heard and determined a number of preliminary arguments relating to the admissibility of evidence, including evidence which the Crown wished to lead as to the relationship between the accused and Ms McDonald. That evidence included hearsay evidence and opinion evidence. The Crown also sought to lead some of that evidence as tendency evidence.

On 23 and 24 February 2011, and on subsequent occasions during the trial, I made oral rulings as to the admissibility of that evidence. Due to the number of other preliminary applications that needed to be dealt with prior to empanelment, I indicated that I would provide written reasons for my rulings later; these are those reasons.

The Crown case

The Crown alleged that the accused arranged for Stuart Binion, Andrew Ardley and Gregory Bone to kidnap Ms McDonald from her home in Wattle Grove, Reservoir, on or about 14 December 1986, for the purpose of her being murdered.

The Crown alleged that Ms McDonald had not been seen or heard from since that time, and there was no record of her making contact with any family member, or business or government authority. Her body has never been found.

The Crown was not able to say who murdered Ms McDonald, whether it was the accused or some other person(s) at his behest, or how she was killed.

The proposed Crown case against the accused was a circumstantial one and the relevant circumstances were said to include the following:

(a) The accused and Ms McDonald were married in 1970 and had 5 children, who were born between 1971 and 1983;

(b) Ms McDonald began work as a waitress at Truck City around April 1985. The accused came to believe that Ms McDonald had a sexual relationship with a truck driver or drivers who frequented Truck City;

(c) Some of Ms McDonald’s family and workmates at Truck City saw bruising or other injuries on her, which she would attribute to the accused. She also complained to some of them of regular assaults by the accused. (The precise evidence will be set out later in these reasons, as its admissibility was disputed);

(d) The accused and Ms McDonald separated on 14 November 1985. The accused and the two oldest children went to live in Wallan. Ms McDonald and the three youngest children went to live in Reservoir (initially with her parents, and later at the Wattle Grove house);

(e) In January 1986, Ms McDonald started custody proceedings in the Family Court, seeking custody of the three youngest children. The accused contested that claim, alleging in his affidavit that Ms McDonald was not a fit and proper person, was promiscuous and involved in drug trafficking;

(f) Whilst Ms McDonald worked at Truck City, the accused stalked her there and left abusive notes on her car;

(g) When the children returned from access visits with the accused, they brought notes which referred to Ms McDonald in offensive and disparaging terms. The Crown alleged that the notes were written by the children at the behest of the accused. (The precise evidence will be set out later in these reasons, as its admissibility was disputed);

(h) On one occasion, the accused maliciously removed the rotor button from Ms McDonald’s car;

(i) On 20 May 1986, Ms McDonald’s brother, Leon McEntee, seriously assaulted her at her home. Ms McDonald told several people that she had seen the accused’s van in the nearby laneway at the time of the assault. The Crown contended that the accused counselled and procured this assault. (The precise evidence will be set out later in these reasons, as its admissibility was disputed);

(j) On 1 June 1986, Ms McDonald’s Wattle Grove home was burgled and almost stripped bare. Several witnesses saw the accused removing the items and/or the accused’s van at the house at the relevant time. (The precise evidence will be set out later in these reasons, as its admissibility was disputed);

(k) The accused’s animosity towards Ms McDonald increased throughout 1986, for various reasons, including the following: he believed she was involved in sexual relationships with truck drivers; she was seeking custody of the three youngest children; the custody dispute was costing him money which he could not afford; he believed she might take the children interstate; and he believed he might be charged over the burglary;

(l) Prior to 14 December 1986, the accused engaged Mr Binion to kidnap Ms McDonald, so he could either send her to Sydney “with her trucker boyfriends” or “put her in a nut house in Albury.” Mr Binion engaged Mr Ardley and Mr Bone to assist him. The three men did kidnap her on the night of 13/14 December 1986 and handed her over to the accused in Whittlesea. They also drove her car to Truck City and left it there, to make it appear that she had taken off interstate with a truck driver;

(m) There was no reason to think Ms McDonald would suddenly abandon her children, as she was in the middle of a custody dispute which was close to being resolved;

(n) After Ms McDonald’s disappearance, the accused made a number of comments, which indicated knowledge of the circumstances of her kidnapping;

(o) There were police telephone intercepts and listening devices since December 2007, in which the accused talked to himself about various matters, which demonstrate knowledge of the circumstances of her kidnapping and the extent of his animosity towards her; and

(p) Various statements made by the accused in his two records of interview were lies going to consciousness of guilt.

At the time of the preliminary arguments, there appeared to be at least three possible lines of defence that may be run at trial:

(a) It was reasonably possible that Ms McDonald did in fact run off with a truck driver;

(b) Ms McDonald may have been abducted by or at the behest of somebody other than the accused; or

(c) If she was abducted by or at the behest of the accused, it was not for the purpose of murdering her, rather it was to send her off interstate or put her in some sort of asylum.

The Crown served:

(a) A notice under s 67 of the Evidence Act 2008 (“the Act”), that it intended to rely on certain hearsay evidence; and

(b) A notice under s 97(1)(a) of the Act, that it intended to rely on certain evidence as proving that the accused had a tendency to be violent towards Ms McDonald.

Whilst not required to be the subject of formal notice, the Crown also indicated that it would seek to lead certain evidence relating to the relationship between the accused and Ms McDonald, for non-tendency purpose.

The accused objected to the admission of some of the evidence which the Crown proposed to lead, for various reasons which will be considered shortly. During the course of submissions, the Crown served amended hearsay and tendency notices and also indicated that it no longer intended to seek to lead all of the evidence in its notices. A table was ultimately prepared by the parties, which recorded what evidence and objections were still being pressed; that table is annexed to these reasons.

Hearsay

Hearsay evidence is generally not admissible (s 59). However, s 65(2) relevantly permits first hand hearsay (see s 62) to be admitted in a criminal proceeding where the maker of the previous representation is not available to give evidence about an asserted fact (including where they are dead or have been unable to be located) and the representation:

(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;

Here, the relevant representations were said to have been made: by Ms McDonald to various persons and in documents; by John Ross, Patrick McEntee and Robert Orwin in statements to police; and by Bruce Williams to two other witnesses. There was no dispute that each of the makers of the previous representations was not available to give evidence.

There was also no dispute that the relevant evidence was “first-hand” hearsay within the meaning of s 62, being evidence of a previous representation made by a person who had personal knowledge of the asserted fact. A person has personal knowledge if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something the person saw, heard or perceived, other than a previous representation made by another person about the fact (s 62(2)).

However, there was a dispute as to whether the requirements of s 65(2)(b) or (c) had been satisfied in respect of some of the representations. The Crown bore the onus of satisfying the court that those requirements had been satisfied.

Sub-section (b)

There was a dispute as to whether some of the representations were made “shortly after” the asserted fact occurred.

The phrase “shortly after” in s 65(2)(b) does not require the same degree of temporal proximity or contemporaneity as the res gestae exception at common law, where the representation was required to be made “in such conditions … of involvement or pressure as to exclude the possibility of concoction or distortion.” Although the phrase “shortly after” involves more flexibility than the old test, there is still some requirement of temporal proximity.

And it is no longer necessary to exclude the possibility of concoction, for the evidence to be admissible; rather, the court must consider whether the circumstances make it unlikely that the representation is a fabrication.

Sub-section (c)

This sub-section represents a major change to the common law, allowing evidence to be led of a hearsay representation made “in circumstances that make it highly probable that the representation is reliable”, irrespective of temporal proximity.

The sub-section requires the court to:

(a) Focus upon the circumstances of the making of the previous representation, to determine whether it is highly probable that the representation was reliable; and

(b) Exclude evidence tending only to prove the asserted fact itself.[1]

[1]Conway v R (2000) 98 FCR 204; R v Williams (2000) 119 A Crim R 490; R v Ambrosoli (2002) 55 NSWLR 603.

In considering reliability under this provision, regard may be had to evidence of inconsistent statements, that is to say, what the maker of the representation said on other occasions.

Tendency evidence

The Crown wished to lead certain evidence to establish that the accused had a tendency to be violent towards Ms McDonald.

Section 97(1) of the Act provides:
Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless –
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
“Probative value” is defined in the dictionary to the Act to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.” To have “significant” probative value, evidence must be more than merely relevant; it must be “important” or “of consequence”, but need not be “substantial”.[2] When determining “probative value” the court should generally not take into account issues of credibility and reliability, but take the evidence at its highest.[3]
[2]R v Lockyer (1996) 89 A Crim R 457.
[3]R v Shamouil (2006) 66 NSWLR 228; Lodhi v R (2007) 179 A Crim R 470.

Section 101(2) provides the following further restriction in a criminal proceeding: “Tendency evidence about an accused … that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.” Section 101(2) only arises once the judge is satisfied that the evidence will, by itself or having regard to other evidence to be adduced, have significant probative value. To determine whether the probative value substantially outweighs the prejudicial effect, the judge must make a judgment, rather than exercise a discretion.[4]
[4]R v Ellis (2003) 58 NSWLR 700; R v Blick (2000) 111 A Crim R 326; R v Cook [2004] NSWCCA 52; R v GAC [2007] NSWCCA 315.

There is no dispute that the Crown complied with the s 97(1)(a) notice requirements. However, the defence argued that the evidence sought to be adduced would not have “significant probative value” for the purposes of s 97(1)(b). Further, the defence argued that the evidence should be excluded: under s 101 (because the probative value of the evidence would not substantially outweigh any prejudicial effect); under the general discretion in s 135[5], or under the mandatory exclusion provision in s 137.[6]
[5]Section 135 relevantly provides: “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…”.
[6]Section 137 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.”

Assuming that it was not otherwise excluded for some hearsay reason, and taken at its highest, the tendency evidence showed that the accused had been violent towards Ms McDonald on past occasions, both before and after their separation. The nature of the injuries said to have been inflicted by him included black eyes, bruising and a broken finger or fingers. There was also some evidence that the accused had threatened to kill Ms McDonald, although those threats appeared to have been made a considerable period of time before the disappearance.

No body having been found, Marlene McDonald’s cause of death was completely unknown. And the Crown case was that Marlene McDonald had been killed either by the accused, or by a person or persons acting at his behest. In those circumstances, I ruled that I would not allow the evidence of violence to be led as tendency evidence. I was not persuaded that the evidence had “significant probative value”. Alternatively, even if it had significant probative value, I was satisfied that the evidence should be excluded under s 135 and/or s 137.

Section 97 only governs the admission of evidence that is sought to be adduced as tendency evidence. It does not prevent the admission of evidence that might show that a person has a particular tendency for another purpose. So, just because I ruled that the evidence about the accused’s past violence towards Ms McDonald was inadmissible as tendency evidence, that did not preclude the evidence from being led as relationship evidence, or to provide context.

Relationship evidence

In broad terms, the relationship evidence which the Crown sought to lead was evidence of the accused:

(a) Assaulting Ms McDonald from early 1985 until the time of her disappearance;

(b) Stalking her at Truck City;

(c) Harassing her, by leaving notes on her car and causing the children to write her notes;

(d) Insulting her;

(e) Burgling her house; and

(f) Being involved in the attack by Leon McEntee, either by procuring it to happen or assisting Leon by driving him over to Ms McDonald’s house.

The Crown argued that the relationship evidence was relevant to:

(a) Whether a crime had been committed at all (or whether Ms McDonald may have run off with another man);

(b) The identity of the killer. The killer must be somebody who bore antipathy towards Ms McDonald, and the accused was one such person;

(c) The abduction being for a malevolent purpose (making it less likely that the accused would have put Ms McDonald in an asylum or sent her to an interstate lover);

(d) The accused’s motive to get rid of Ms McDonald by killing her;

(e) The accused’s intent.

All of those matters were potentially relevant to the issues in dispute in this case.

The defence argued that the relevant period for relationship evidence was from the start of 1985 until the December 1986 disappearance. Although the Crown did not initially agree that the period should be so confined, as submissions developed, that ended up being effectively adopted by both sides as the relevant period.

For reasons which follow, I did not allow evidence relating to the matters referred to in paragraphs 29(e) and (f) above to be led at all. However, evidence relating to the matters referred to in paragraphs 29 (a) to (d) was permitted to be led (subject to any other valid objection to admissibility).

The evidence

By the end of the preliminary arguments, the Crown no longer pressed for the admission of all of the evidence referred to in its hearsay and tendency notices, and the defence no longer pressed all of its objections to the evidence which the Crown sought to tender (as long as it was tendered for a non-tendency purpose). Accordingly, I will not refer to evidence which fell into either of those categories, save to the extent that it is necessary or helpful to understand or consider evidence, the admissibility of which was still in dispute.

Circumstances surrounding Ms McDonald’s disappearance

The Crown wished to lead certain evidence relating to the likelihood of Ms McDonald having run away or left her children. By the end of the preliminary arguments, the defence did not object to the Crown leading evidence:

(a) From Edith McEntee (Ms McDonald’s mother), Dorothy Orwin (Ms McDonald’s neighbour) and Helen Clarke (Ms McDonald’s workmate), as to the proposed or actual purchase by Ms McDonald of Christmas presents for her children;

(b) From Dorothy Orwin, about Ms McDonald returning a key to Bruce Williams on the Saturday of her disappearance; and

(c) From Patrick McEntee (Ms McDonald’s late father), about Ms McDonald’s relationship with a man called “Bruce” at the time of her disappearance.

Patrick McEntee’s statement also contained the following evidence as to what he observed when he went to his daughter’s house on the Sunday afternoon after her disappearance:

I remember quite well, the louvre windows in the toilet were broken and the glass was on the toilet floor, which suggested to me that this was a result of somebody trying to gain entry inside and broke the glass.

…

I don’t know what items were missing from the house, but I do remember her vanity bag was inside the house and this was unusual as Marlene never went anywhere without this. (D5917)

The defence only objected to the text which has been italicised. The basis of the defence objection was that this was said to be an opinion which was not well-founded, and was therefore inadmissible.

The opinion rule is contained in s 76 of the Act, and provides that “[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.” One of the exceptions to that rule is contained in s 78, which provides:

The opinion rule does not apply to evidence of an opinion expressed by a person if:

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

In so far as the italicised text might involve the expression of any opinion, I was satisfied that it fell within the s 78 exception. It was an opinion based on what he had seen, heard or otherwise perceived about his daughter’s usual behaviour in relation to her vanity bag, and it was necessary to obtain an adequate account or understanding of why Patrick McEntee particularly noticed the presence of that bag in her house when he went there the day after her disappearance.[7] I ruled that the italicised evidence was admissible.
[7]Rather curiously, at the time of arguing this objection, the defence did not seek to also prevent the calling of similar evidence about the vanity bag from other persons, such as Ms McDonald’s sister, Anne Cooper.

The Crown also wished to adduce the following hearsay evidence from Lynette Parker (Truck City workmate) about matters that she had been told by the late Bruce Williams:

I think a man called Bruce was one of [Ms McDonald’s] main men. She stuck to him a lot. Bruce was from McPhees transport but has since died of cancer, he took her out a few times. The night she went missing Bruce dropped her off home. He used to visit me at Truck City after her disappearance and would tell me about the night he last saw Marlene.

Bruce told me that Marlene had asked him to come in for coffee on this night, Bruce said that his car had been playing up earlier in the night. He had made a decision not to come inside the house as it would have meant turning his car engine off. He thought that it may not have started again. Marlene said that she would see Bruce tomorrow and he drove away. (D1618)

The defence only objected to the italicised text. The evidence was clearly relevant to the issue of Ms McDonald’s actions and intentions on the night of her disappearance. But, at the time of the preliminary argument, I did not have material before me as to when and in what circumstances it was that Bruce Williams spoke to Lynette Parker, so as to be able to determine its admissibility under either s 65(2)(b) or (c). I determined to hear evidence from Lynette Parker on a voir dire, before I ruled as to its admissibility. The defence accepted that the evidence would be admissible, if the conversation between Lynette Parker and Bruce Williams occurred within a few days of Ms McDonald’s disappearance.[8]
[8]T 155-6.

When Ms Parker gave evidence on the voir dire, she stated that she had the relevant discussion with Bruce Williams on the day after Ms McDonald disappeared. However, as Ms Parker could not remember the italicised words at all, there was no need to rule on them[9] and they were not sought to be led at trial.
[9]T 348.

Stalking/harassment

The Crown wished to lead evidence about the accused’s behaviour towards Ms McDonald, both before and after their separation in November 1985. In particular, the evidence related to: the accused driving past Ms McDonald’s home or her workplace; the accused ringing her or speaking to her whilst she was at work; and the accused leaving notes for her. During the course of the preliminary arguments, the Crown indicated that it no longer sought to lead any of that as tendency evidence, relying on it as relationship evidence only.

The defence did not object to much of this evidence being tendered as relationship evidence. However, the defence disputed that the behaviour could properly be characterised as stalking or harassment, saying that it evidenced no more than the accused keeping an eye on his wife or checking up on her whereabouts for good reason. Of course, the appropriate characterisation of that behaviour was a matter for the jury.

By the end of the preliminary arguments, the defence had no objection to the Crown adducing the following evidence:

(a) From Edith McEntee, about the accused driving past their house whilst Ms McDonald and the younger children were staying there after the separation;

(b) From Truck City workmates, Patricia McIntyre, Beverley Myers and Barbara Ritchie, about the accused turning up at Truck City, or a van like his one loitering around Truck City, when Ms McDonald was working shifts, or about how Ms McDonald reacted when he did that;

(c) From Truck City workmate, Helen Clarke, about how the accused was verbally abusive to Ms McDonald on the phone; and

(d) From Anthony McEntee (Ms McDonald’s brother), about the accused following Ms McDonald to and from work (provided that Mr McEntee was asked to indicate what time period he was talking about).

The defence also had no objection to the Crown adducing the following non-italicised evidence from page 3 of the statement of Margaret Goullet (Truck City co-worker):

I am also aware that Marlene was getting phone calls. I know this as I would often answer the telephone for truck city. There was a male voice who did not identify himself and he would ask to speak to Marlene. Marlene answered these calls a number of times and then told me it was her husband. This is how I came to know his voice. …

After a while Marlene stopped taking phone calls from this male who she said was her husband. Once I came to know his voice Marlene would gesture to me to tell him she was not at work. I would tell him that Marlene was not at work and he would hang up. One night he said to me “We will see” as if he knew she was working this particular night.

As a result of some of these phone calls Marlene would go outside to the carpark area. I never saw her talking to anyone but she would return after a short time and say that her husband had been outside and he told her that he would come into the restaurant and make a scene if she hadn’t have gone and spoken to him. She said that her husband had gone ballistic and she was unsure as to what he would do.

I also remember that there were a couple of occasions at least 2-3 times that I remember Marlene saying out loud “here he is” he must be going to write another note… On these occasions I looked outside the front and would see a man pull up in his car and get out and then lean against his car facing the restaurant staring inside. He would not stay long but he stayed there long enough to let us know he was there. Marlene would not go outside when he showed up. She was terrified of him.

I agreed with the defence that the expression “gone ballistic” was ambiguous. It is a colloquial expression, which might have meant many different things, from he was just “mouthing off” or being rude to her, to he was threatening to assault or kill her. Ms McDonald was not around to explain what she had meant when she used those words. The fact that evidence may be capable of a number of possible interpretations, including ones consistent with innocence, does not of itself give rise to a danger of unfair prejudice.[10] However, it may mean that the evidence has little probative value as evidence of guilt. Here, there were perfectly plausible, innocent explanations for the evidence. In the circumstances, I excluded the italicised words, on the basis that the probative value was outweighed by the danger of unfair prejudice.
[10]R v SJRC [2007] NSWCCA 142.

The defence initially objected to all of the following evidence of John Gaffney (friend):

Marlene often stated that she was frightened of [the accused], she said she was receiving phone calls from [the accused] but that he was disguising his voice. I cannot remember the content of the calls but they had Marlene very scared. (D1753)

By the time of the annexed table, the only objection was to the italicised words. Unfortunately, the table did not disclose what the basis of objection to those words was.[11]
[11]The earlier hearsay objections seemed to have been removed by the acceptance by the defence of the admissibility of the rest of that paragraph.

In so far as Ms McDonald’s statement (that the phone calls were being made by the accused, who was disguising his voice) involved the expression of an opinion by her, it was admissible under s 78. It was based on what she heard or perceived in the particular phone calls (no doubt compared with what she had heard or perceived in other calls or conversations with her husband), and the evidence was necessary to obtain an adequate account or understanding of her reaction to the phone calls.

In so far as there had been some earlier objection to the whole paragraph, based on it being “possibly prejudicial” or unreliable[12], that objection was not really explained and did not seem to have been persisted with. In any event, the evidence had obvious probative value, and I was not satisfied that was outweighed by any possible unfair prejudice.
[12]See for example T 270-1.

Accordingly, I ruled that the Crown could lead that evidence from Mr Gaffney.

The defence did not object to evidence being led from Anthony John Day (Truck City workmate) as to his observations of the accused doing “drive bys” of Truck City. However, the defence said that the evidence must be fairly led, so as to reflect the second paragraph on page 2973 of the depositions, as qualified by evidence given by Mr Day at the committal (especially at T987). The defence also said that Mr Day should be asked to clarify what time period he was talking about, to ensure that it was in the relevant period for relationship evidence. I ruled that the evidence could be led, as long as those defence concerns were addressed.

The defence had no objection to the Crown adducing the following evidence from Ms McDonald’s affidavit, dated 9 January 1986:

Since separation the husband has harassed and assaulted me. … On the 7^th January and 8^th January, 1986 the husband had left or caused to be left abusive and threatening letters written by himself, on the windscreen of my car while I have been at work. (D2233)

However, the defence objected on a number of grounds to the italicised words in the following evidence from Truck City workmate, Margaret Goullet:

… notes started to be put on windscreen wipers of Marlene’s car. … I remember one particular night Marlene finished work and was escorted outside by a truck driver who walked her to her car. This was standard practice for all of us women that worked there. We would always have a truck driver walk us to our cars for safety reasons. On this occasion I remember that Marlene after leaving the restaurant walked back in a short time later and she was visibly very upset. She was crying and was very scared. She held out her hand and showed me a note. The note was a scraggy bit of paper but I have visions of the writing on this piece of paper. The only words I remember that were scribbled on this piece of paper were “Your dead” [sic]. I remember Marlene saying that her hubby was up to his old tricks. This was the only note that I remember seeing although I am aware of other occasions that Marlene talked about receiving them. I recall that on these occasions she would screw up what appeared to be pieces of paper and say the same thing about her husband being responsible. (page 2 of statement)

There was no hearsay involved in Ms Goullet saying that she saw the words “Your dead” on the note. The representation by Ms McDonald that the accused was responsible for the note was made at, or shortly after, the time that she showed Ms Goullet the note. I was satisfied that it was made in circumstances that made it unlikely that the statement was a fabrication and, indeed, made it highly probable that the statement was reliable. The hearsay evidence was therefore admissible under either s 65(2)(b) or (c).

In so far as the evidence was sought to be used for a relationship purpose (such as showing the accused’s animosity towards Ms McDonald), I was satisfied that the note must have been seen and discussed during the relevant period (as Ms McDonald only worked at Truck City during the relevant period) and had probative value for such a relationship purpose.

In so far as the words on the note may be capable of different meanings (ranging from an actual death threat, to what the defence sought to characterise as something more innocuous), that may be relevant in considering probative value. But, as mentioned earlier, the fact that evidence may be capable of a number of possible interpretations, does not of itself give rise to a danger of unfair prejudice.

I accepted that the attribution of the relevant note to the accused (whether as the author or procurer of it) may well be prejudicial to the accused. But, I was not persuaded that it would be “unfairly” prejudicial. Evidence is not unfairly prejudicial merely because it makes it more likely that the accused will be convicted; rather, there has to be an element of unfairness, such as a real risk of leading the jury to adopt an illegitimate form of reasoning, or giving the evidence undue weight. The defence did not really explain what would be “unfair” in the context of this evidence. I ruled that the italicised evidence could be led.

The defence also objected to the Crown leading the following evidence from Anthony John Day:

I am aware that there were notes left on the car. They would be left on the driver’s door, wedged in between the glass and frame. They would also be put in under the wiper blade. This was being put onto the car when it was parked out the front of the restaurant. I remember seeing Marlene out at her car take a note out of the door and put it in her bag. I don’t know what the notes said. (D2973)

According to the annexed table, the defence only objected to this being led as relationship evidence on the basis that it was not reliable or probative, because it was not known when it was that Mr Day saw the notes. But that had to have occurred some time between Ms McDonald commencing work at Truck City in early to mid 1985 and her disappearance, all of which was within the relevant period in terms of relationship evidence. And Mr Day could be asked whether he was able to be more specific about when it was, within that period, that he saw the notes. True it was that Mr Day could not give evidence as to the contents of the notes, or as to who had left them, but that did not deprive them of any probative value. There was evidence from a number of other witnesses that the accused left notes on Ms McDonald’s car, and this was capable of supporting that evidence. I ruled that the Crown could lead this evidence.

Offensive name-calling

The defence did not object to Edith McEntee giving hearsay evidence of the accused accusing Ms McDonald of being a prostitute and telling the children that too.

However, the defence objected to a number of witnesses giving evidence to the effect that the accused harassed or distressed Ms McDonald by procuring the children to write offensive notes to her. The defence objected to all of the following evidence being led:

(a) From Edith McEntee:

The kids brought notes from visits with John. The notes were vulgar and the kids wouldn’t have understood them. (D1488)

(b) From Dorothy Orwin:

Simon and Timothy brought letters home in their own handwriting. They had filthy language on them. There were things I will not repeat. Things worse than Marlene was a whore and a prostitute. Things that the boys wouldn’t have understood. (D1542)

(c) From Anthony McEntee:

Marlene showed me a note. The note was on a piece of paper about 120mm squared. There was handwriting on the note. I don’t remember what was written but I do remember that after reading the note I was immediately disgusted. The note was derogatory to Marlene. I have a recollection that the note came into Marlene’s possession after the children stayed with John. Marlene had been given the note from the children. I remember that the boys, Simon and Timothy were in the lounge room at the time and I went and spoke to them about the note. (D1740)

Ultimately, it was for the jury to determine whether they were satisfied that the accused was responsible for the children writing derogatory or offensive notes to their mother. But the evidence was clearly relevant to the relationship between the accused and Ms McDonald, and was capable of demonstrating antagonism on the part of the accused. And the letters or notes were said to have been brought home after the separation, and were therefore clearly within the relevant period for relationship evidence.

The defence objected to the evidence in so far as the witnesses were purporting to give an opinion as to whether the children would have understood the words used, or as to whether the words were vulgar, filthy or disgusting. The defence argued that those opinions were “not reliable”. Initially, I was concerned about whether such opinions would be admissible. I deferred ruling on that evidence until after I had heard evidence on a voir dire, to see whether they could give any further evidence about the words actually used in the notes.

On the voir dire, Mrs McEntee said that Ms McDonald kept quite a few of the notes in a box and showed them to her. She said she glanced at the notes, but did not really read them. She said that Ms McDonald told her that the notes called her a prostitute and a slut. The statements by Ms McDonald appear to have been made at or about the time she was showing her mother the notes. Mrs McEntee said that at least one of her other daughters, Julie, also told her she had read the notes and they said the same thing; but it was not clear when or in what circumstances Julie had any such conversation with her mother. I was satisfied that Mrs McEntee’s proposed evidence, as given on the voir dire, did not involve the expression of any opinion. In so far as it involved hearsay representations by Ms McDonald as to the contents of the notes, I was satisfied that the evidence was admissible under either s-s 65(2)(b) or (c).

Mrs Orwin also gave evidence about the notes on a voir dire. Mrs Orwin was not only a neighbour, but also a close friend, of Ms McDonald. They saw each other daily, and she and her husband often baby-sat the McDonald children while Ms McDonald was at work. She said that after Timothy had been on access visits to his father, he would bring “filthy dirty notes” home; she recognised that they were written in Timothy’s handwriting. She said she could not recall the actual words used in the notes, but they blamed Ms McDonald for going out with other men and having sex with them. She said she saw “dozens” of such notes, during the period from mid to late 1986, and they were generally all of the same flavour. She said Ms McDonald was always crying and upset about the notes and what they said.

In so far as Mrs Orwin’s description of the notes as “filthy dirty” notes involved the expression of an opinion by her, I was satisfied that it was admissible under s 78; it was based on what she saw in the notes and was necessary to understand her perception of the notes, in circumstances where she could no longer recall the precise words almost 25 years later.

On a voir dire, Anthony McEntee also gave evidence about his sister showing him a note in a child’s handwriting, which had the word “slut” on it, which shocked him. Ms McDonald also showed him a cardboard box containing some other notes, which she said the children had given to her. In so far as Anthony McEntee’s description of the notes as “disgusting” or “derogatory” involved the expression of an opinion by him, I was similarly satisfied that it was admissible under s 78. In so far as the evidence involved hearsay representations by Ms McDonald to the effect that the children had written the other notes, I was satisfied the evidence was admissible under s 65(2)(c).

Finally, I did not accept the defence argument that this evidence could not be given by these witnesses, because the McDonald children could or should be asked about these notes. The fact that evidence can be given by witness A, does not mean that evidence on the same matter may not also be given by witness B.

Vandalising her car

The defence had no objection to the Crown adducing evidence from John Gaffney (friend) as to a particular incident that occurred on Boxing Day 1985, which involved the accused removing a part from Ms McDonald’s car, thereby preventing her from leaving the house with the children.

However, the defence did object to the Crown adducing the following evidence from Edith McEntee:

I also recall Marlene telling me, just prior to her separation from John, that there were a lot of occasions when she was going to take the children out, or something like that, or come down to our place in that John would take something out of Marlene’s case called the row, the rotor of whatever you call it. She told me he would take this part out of the car which would stop the car from going and John would not allow her to come.

Marlene’s vehicles were tampered with on a few occasions when she lived with us. (D1495)

The defence did not dispute that there had been one such incident, but objected to the vague references to “lots of occasions” or more than one occasion. In so far as the evidence involved hearsay, the defence objected on the grounds that it was too remote and not reliable. In any event, the defence argued that it was not probative of any issue.

I deferred ruling in relation to this evidence until after I had heard evidence from Mrs McEntee on the voir dire. In fact, on the voir dire, Mrs McEntee said she could only definitely recall one such incident. The Crown did not end up seeking to lead that evidence from Mrs McEntee at trial.

Bruising and assaults

The defence did not object to the Crown adducing the following evidence from Marlene McDonald in her Family Court affidavit dated 9 January 1986:

On or about the 28^th December, 1985, I took Timothy and Simon to the former matrimonial home for access. At the conclusion of the visit the husband demanded that Timothy and Simon remain with him. There was a violent scene where the husband assaulted me and would not allow me to leave. Timothy and I walked to the Broadford Police Station. Two police officers returned to the former matrimonial home with me and the husband was required to replace a part in my motor car to enable me to leave.

Since separation the husband has harassed and assaulted me.

However, the defence objected to the Crown leading all of the following evidence relating to alleged assaults by the accused on Ms McDonald. In so far as the defence objected that the evidence was not probative of any issue in dispute, I rejected that objection. Evidence of violence was clearly relevant to and probative of the relationship between the accused and Ms McDonald.

Nor was I persuaded that the probative value of the evidence was outweighed by any unfair prejudicial effect. In so far as the defence sought exclusion of any of this evidence under ss 135 or 137, the defence argued that it was not fair for the accused to have to defend himself against such allegations, particularly when the precise timing of many of the alleged assaults was unknown.[13] And it was suggested that the jury might speculate that such assaults occurred close to the time of the disappearance, which would be “devastating to the accused.”[14] But the jury would be directed about inferences and speculation. There was no reason to suppose that the jury would impermissibly speculate that the assaults occurred at any particular time, given all the other evidence about assaults occurring both before and after the separation. I was not persuaded that the prejudicial effect of the evidence would be “unfair” in the relevant sense. However, the hearsay objections are discussed separately below.
[13]See for example T 80-1.
[14]T 310.

From Edith McEntee:

Marlene said there was an argument between her and John. She showed me a bruise on her leg and said that John caused it. …

On an occasion after they had separated Marlene showed me a broken finger. It was twisted and obviously broken. It was always twisted after this. She told me that John had broken her finger when swapping over the children for an access visit. (D1483) …

Marlene came to visit Pat and I, at different times prior to the separation with bruises to her body, Marlene told me John had caused them. She didn’t say how John had caused the bruises. (D1495)

By the time of the annexed table, the defence no longer objected to the evidence about the broken finger being led as relationship evidence.

However, the defence continued to object to the leading of the evidence about bruises and how they had been caused. The defence argued that the hearsay evidence was “inherently unreliable”, because Ms McDonald damaged herself from time to time, or was hit by other people, such as her son Damian. In so far as that was really an attack on the accuracy of the asserted fact, rather than on the circumstances in which the representation was made by Ms McDonald, it was inappropriate in terms of a s 65(2)(b) or (c) analysis.

I determined to hear evidence from Mrs McEntee on a voir dire, before ruling on admissibility. On the voir dire, Mrs McEntee said that she saw bruising on Ms McDonald’s thighs and arms, both before and after the separation. She said that Ms McDonald had told her the accused had caused the bruising, although did not say why or how he had done so. I was satisfied that the representations by Ms McDonald were made shortly after the bruises had been caused, and in circumstances that made it unlikely that the representation was a fabrication; the evidence was therefore admissible under s 65(2)(b).

From Anthony McEntee:

I can recall she [MM] had bruising around her eye and ear … Marlene told me John was hitting her and this happened at the house in Broadford … I have a feeling that Marlene may have told me that John assaulted her in a car near Truck City. (D1736)

This incident appeared to have occurred when Anthony McEntee was helping his sister collect her things from the former matrimonial home at Broadford, at or shortly after the separation.

While I would have allowed this evidence to be led from Mr McEntee, it is not necessary to analyse it further at this time because, in the witness box at trial, Mr McEntee gave a far milder version of events, which did not involve the accused engaging in violence towards Ms McDonald.

From Dorothy Orwin:

Marlene told us of her relationship with John. They were living in Whittlesea together. Her marriage was not good. John used to assault her badly. She used to have black eyes all the time from him. One time he grabbed her finger and broke it with his hand. She was terrified of him. (D1539)

By the time of the annexed table, there was no objection to Mrs Orwin giving evidence about the broken finger. However, I deferred ruling on the admissibility of the general evidence about assaults, until after I had heard evidence from Mrs Orwin on a voir dire, to enable me to assess when and in what circumstances Ms McDonald had told Mrs Orwin these matters. On the voir dire, Mrs Orwin said that Ms McDonald had told her that these assaults occurred before she came to live at Wattle Grove. Mrs Orwin also said she did not see the bruising herself. As a result of her evidence on the voir dire, the Crown decided not to seek to lead this general evidence from Mrs Orwin[15] and did not do so.
[15]T493.

From Sharon Scicluna:

I remember a day when she walked into work and she had a big gash and a big egg on the back of her head. Marlene said that her husband had done that to her. Marlene said something about being at the back of the house and he used a plank of wood to hit her across the back of the head. I remember Marlene being belted a number of times by her husband, but I cannot remember each individual incident. It is so long ago and so it just blends into the background, but I do recall Marlene being hurt regularly. (D1663-4)

By the time of the annexed table, the defence no longer raised any hearsay objection to the non-italicised text. But it argued that the evidence was “too remote” to be relationship evidence. Even though it was not clear precisely when the specific injuries were observed by Ms Scicluna, it must have been within the relevant period, as it was during Ms McDonald’s time working at Truck City. Evidence of such violence was clearly relevant relationship evidence.

As far as the italicised evidence was concerned, I allowed it to be led in so far as it could be tied in with particular conversations between Ms McDonald and Ms Scicluna, which took place at or around the time that Ms Scicluna witnessed bruising on Ms McDonald.

From Beverley Myers:

Marlene revealed to me that she had major issues with her husband. … I would see Marlene come to work with bruises and marks quite a lot. … Marlene would tell me that she was being hit by her husband. Marlene just wanted to get away from him. I cannot remember what the specific issues were in relation to her being hit by her husband, but I know that he was just not nice to her. (D2336)

Unfortunately, the final table did not indicate what the basis for objecting to this evidence was. In so far as the evidence was hearsay evidence of what Ms McDonald told Ms Myers, I allowed it to be led under s 65(2)(c).

From Nancy Valentini:

Marlene confided in me. Her husband was John McDonald. I remember that Marlene told me that he was violent and had a bad temper.

Marlene showed me bruises on her arm. She said that John had grabbed her, pushed her and caused the bruises. He used to get rough with her.

I remember one day she said she couldn’t take her sunglasses off.

I don’t know if John stared [sic] getting rough before or after Marlene started seeing other men while she was at Truck City.

I told her to tell someone and she said that no one would believe her. (D2998-9)

In so far as the evidence was hearsay evidence of what Ms McDonald told Ms Valentini, I allowed it to be led under s-s 65(2)(b) (in so far as any conversations took place at or around the time that bruising was visible) and/or (c).

From Anthony John Day:

Marlene was having marital problems with her husband who’s name was John McDonald. She would come into work, black and blue. What I mean by this was she had bruises on her face and arms. The waitresses were wearing short sleeved uniforms and you could see the bruises. It was not often to start with, then it became regular, it was towards the end of the marriage when it became more obvious. Marlene would tell me that her husband had done this to her, she was petrified of him. (D2972)

I remember that Marlene would say to me that John was threatening her. She would say that John had threatened to kill her. I think it was every second day she would say John was going to kill her. (D2974)

By the time of the annexed table, there was no hearsay objection to any of this evidence. I allowed the evidence to be led as relationship evidence, notwithstanding that no time was specified for these conversations, as Mr Day was clearly talking about events that occurred in the relevant period, while Ms McDonald was working at Truck City.

The accused’s alleged involvement in assault by Leon McEntee

There was no dispute that Ms McDonald’s schizophrenic brother, Leon McEntee, seriously assaulted her on May 1986, to such an extent that she required hospitalisation. Accordingly, the following evidence as to the assault was not objected to by the defence:

(a) From Barbara Ritchie:

Marlene said she was in bed and was woken up. She was on her own that night. Marlene was dragged out of the bed and into the lounge room. There was two men and their faces were covered. Marlene said it was her brother and father. They both started punching and kicking her. The father was very religious and was saying over and over that she has sinned ... (D1468)

(b) From Margaret Goullet:

Marlene was terrified about the husband and also her brother… Sometime before Marlene went missing, she came to me and said if I don’t come to work tomorrow call the police. …

After this I found out she was in the hospital the next day. (Page 4 of statement)

However, the Crown wanted to lead evidence from a number of witnesses to the effect that, at the time of the attack, the accused’s van had been parked in the laneway near the Wattle Grove house. The Crown proposed to invite the jury to infer that the accused had been involved in the attack, either by procuring or encouraging Leon to attack his sister, and/or by assisting Leon by driving him to and from the house. The defence objected to all of this evidence, on the basis that it was not probative, alternatively should be excluded under ss 135 or 137. There were also specific hearsay objections to some of the evidence.

The defence objected to the Crown leading the italicised part of the evidence of Dorothy Orwin:

She told me about the assault on her by Leon, her brother. At the time Leon was living with her. Leon and John would talk a lot on the phone while Leon was there.

Marlene said she came home late at night at about 12:15am after work. She parked her car in the drive and saw the gate open. The gate was a 6 foot metal gate that you couldn’t see past. It was just ajar and Marlene went to close it. She said Leon stepped out from the gate. He was wearing a balaclava but she knew him well enough to recognise other features to know it was Leon.

He hit her over the head with something. She tried to protect herself by putting her hands up. She had 4 fingers broken and a bad gash in her head. Leon tried to drag her out of the drive. … Leon dragged her into the alley. Marlene collapsed to stop him taking her further. … Leon ran as soon as she collapsed. … Marlene got up and ran further into the lane. … When she was running down this lane she came across, John’s cream coloured combi-van parked in the lane. She heard it try to start as it had an engine problem … She kept running to the 7/11. … She rang police from the 7/11.

Marlene didn’t tell the police about John being in the lane because she was too scared that if he knew she had seen him, he would do something to her…

I heard an engine trying to start in the lane. It took a bit to start… The car sounded bad, not like a good motor. (D1539-41).

Similarly, the defence objected to the Crown leading the italicised part of the evidence of Edith McEntee:

One night when Marlene came home from work it was dark, she was assaulted. It happened outside near the side gates. She had bad injuries to her head and arms. I spoke to Marlene in hospital, she told me that she struggled to get away and ran to 7/11 down an alley way that was 2 doors from her home. On the way she saw a white van that she said was her husband John’s parked in the alley. …

She didn’t tell police about the van because she was so frightened of John.

Marlene was in hospital for a few days. Irene Zak … told us that Leon had been responsible for the assault …

Leon was eventually charged with the assault on Marlene and went to Pentridge on remand. (D1485-7)

The defence objected to other evidence to the effect that the accused’s van was present that night:

(a) From Barbara Ritchie:

Marlene stated that as she was being dragged along that she saw her husband’s van… (D1648)

(b) From Anthony McEntee:

Marlene mentioned to me that she had seen John’s vehicle which I believe was a white van. She told me that John’s van had been parked in the laneway at the time of the attack. (D1739)

I ruled that the Crown could not lead any evidence of the presence of the accused’s van in the laneway that evening. No witness suggested that the accused himself had been seen or heard at or near the scene of Leon’s assault. The presence of the accused’s van in the laneway was of slight probative value, particularly given that there were a number of possible innocent explanations for its presence (for example: that Leon had borrowed the van; that somebody other than the accused or Leon had driven it that night; that the accused had given Leon a lift for an innocent reason – such as to collect his things – with no knowledge of or involvement in the attack). I was concerned that the probative value would be substantially outweighed by the danger of unfair prejudice.

The burglary

The Crown sought to lead evidence about a burglary alleged to have been committed by the accused at Ms McDonald’s Wattle Grove home, on or about 1 June 1986, while she was in hospital recovering from the assault by her brother Leon. The Crown argued that the burglary demonstrated the degree of animosity which the accused had towards Ms McDonald and was admissible as relationship evidence. The defence objected to any of this evidence being led, primarily on the ground that it was not probative, alternatively on the ground that it should be excluded under ss 135 or 137; those global objections are discussed at the end of this part of the reasons. There were also some discrete hearsay objections, which are considered next to the relevant evidence.

In her statement to police after the alleged burglary, made on 6 June 1986, Ms McDonald said:

On Monday the 2^nd of June 1986, I arrived home at about 6am. I opened the front door with the key. When I got inside I found that the house had been cleaned out and all that was left was 3 bed bases, table, pots and pans, washing machine and fridge and 3 wardrobes, lounge suite without the cushions. It appeared that these items were also ready to go as they (bed bases) were on their sides, and the bedheads by the back door. The back door was open which was strange because it had been locked by my brother on the Saturday. (D5930)

The evidence was in a formal statement made to police a few days after the relevant events, being circumstances that made it highly probable that the representation was reliable (s 65(2)(c)). I would have rejected the defence hearsay objection, had I otherwise been minded to let in evidence of the burglary.

The defence objected to the Crown leading the following direct evidence from Dorothy Orwin (neighbour):

(a) From her statement to police made on 15 July 1986:

On Sunday the 1^st of June 1986, at about 1pm-1:30pm … I noticed a white Mitsubishi van, registered number CPL488, backing into the driveway of number 40 which is directly opposite the road from my house. Driving this van was John McDonald, the ex-husband of Marlene who lives there with her children.

I watched John get out of the van. As he did he took a brown towel with him and went around the back. He was out of sight for about 10 minutes and then came back around the front carrying red and green milk crates. He put them on the front verandah and then went back into the house through the front door. I sat and kept watching because I knew Marlene was away for the weekend. He was a fair while inside and then he carried out the milk crates one at a time and put them on the verandah and then lifted them over the wrought iron into the van. I noticed he was now wearing a pair of pink rubber gloves. He then went inside and came out carrying in both arms narrow types of boxes that looked like drawers and he put them in the van one at a time. He went back inside and came out with more boxes.

I couldn’t tell you what was in them. The next thing he brought out was a large portable type transistor radio and he put that in the van too. Then he brought out a mattress and slid it over the top of everything. He went back and shut the front door and then drove south along Wattle Gve.

I forgot to say before but when I saw John there I told my husband to come and have a look, which he did, and I wrote the registration number on a pad by the window. (D1501)

(b) From her statement made on 20 March 2003:

John was taking everything out of the house. He took mattresses, chairs, tapestry. He even took the kitchen drawers which were full of cutlery and the like. He emptied the house. He did a number of trips in his van. He wouldn’t have gone far because he returned pretty quickly. Bob saw this as well. John was by himself. He finished in the late afternoon. (D1507-8; 1538-9)

The defence also objected to the following hearsay evidence being led from Dorothy Orwin in relation to the burglary, on the basis that it was not reliable:

Marlene later told me that everything had been taken. There was nothing, she said not even a thing in there even her tapestry she’d done, you know, and they were framed and that. All that was left hanging up was two bridesmaid’s dresses that she’d had years ago and one jacket and that’s all he left in the clothes. (D1559-60)

Had I otherwise been minded to allow evidence of the accused’s involvement in the alleged burglary, the reliability objection could have been dealt with after clarifying when and in what circumstances Ms McDonald told Mrs Orwin those matters.

The defence objected to the following hearsay evidence from Dorothy Orwin’s late husband, Robert Orwin, from his statement to police made on 15 July 1986:

On Sunday the 1^st of June 1986, I was inside my house waiting to have dinner when I think my wife said something about a truck being over there, meaning the house … which I know Marlene McDonald lives in. I then went to the front lounge room window which looks straight across to Marlene’s house. I saw a whitish coloured Mitsubishi van and I think it was parked in Marlene’s driveway. I think this was about 1pm or 1.10pm. I then saw a person I know as John McDonald open the side gate to 40 Wattle Grove… saw John walk out of Marlene’s front door carrying what appeared to be a milk crate with articles in it… during the time I looked out the window I think I saw John carry out two or three crates with things in them and what looked like a mattress. I saw John put these items in the van. (D5908)

The defence objected to the Crown adducing the following hearsay evidence from the late John Ross:

On Sunday the 1^st of June 1986, at about 1pm, I was in my lounge room watching TV… My attention was drawn to a white Mitsubishi van, that was reversing into the driveway of number 40… I saw a man get out of the van. I recognised him to be John McDonald, the ex-husband of the lady who lives at that house. … Shortly after I saw John dragging what appeared to be mattresses or bedding of some sort and put them in the van. I kept watching him as he was loading the van up. (D2202)

Both Mr Orwin and Mr Ross’s representations were made in formal statements to the police, within a couple of weeks after the relevant events, being circumstances that made it highly probable that the representation was reliable (s 65(2)(c)). I would have rejected the defence hearsay objection to this evidence, had I otherwise been minded to let in evidence of the burglary.

There was no dispute that the accused was involved in removing items from the Wattle Grove home. The Crown wanted to be able to invite the jury to conclude that the accused‘s antagonism towards Ms McDonald was such that he had broken into her house and stolen her property while she was in hospital. But the police had investigated the alleged burglary shortly after it occurred, on Ms McDonald’s complaint, and decided not to press charges against the accused. The Crown did not propose to call any evidence as to why the police had not taken the matter further at the time. It may well have been because the police were persuaded that the items that the accused removed had belonged to him in the first place, or it may have been for some other reason. Accordingly, the jury would have been speculating as to whether or not the accused had acted wrongfully and out of animosity (as the Crown alleged), or whether he was simply recovering his own possessions, which had been wrongfully removed by Ms McDonald when she moved out.

In those circumstances, I was concerned that the evidence was not probative, alternatively, that any probative value was substantially outweighed by the possible prejudicial effect. Accordingly, I ruled that none of the evidence as to the deceased’s involvement in the alleged burglary could be led.

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R v JOHN McDONALD
LIST OF HEARSAY/TENDENCY/RELATIONSHIP EVIDENCE (17.02.11)

Witness	Dep	CT	HN	TN	R	Transcript	P Comments	D Comments	Outline of evidence
1	McENTEE Edith	1466	1	1.1	1.1 (4.1)	R	19.10	H: Too remote ‘ not reliable. R:as above. T: not probative SS135,137	1483: MM brought the kids after MM was assaulted. MM showed me bruising on her leg and said JM caused it. CT10: Said this was in 1985 or earlier. (1483: Saw bruises.)
2	McENTEE Edith	1466	1	1.1	1.1 (4.1)	R	25.22	H: Too remote ‘ not reliable. R:as above. T: not probative SS135,137	1495: During the marriage at different times prior to their separation, MM would visit with bruises, which MM said was caused by JM. (1483: Saw bruises.)
3	McENTEE Edith	1466	1	1.2	~~1.3~~	R	26.17	H: Too remote ‘ not reliable. R:as above.	1495: Prior to their separation, MM said there were lots of occasions when JM would take something out of MM’s car (the rotor) to stop her from going. (~~1496: MM’s vehicle was tampered with when she stayed at the McEntees.~~)
4	McENTEE Edith	1466	1	1.3	1.5 (4.2)	R	20.16	No objection (relationship)	T: not probative SS135,137	1483: On another occasion after separation, MM showed her a broken finger and said JM had caused this when swapping over access. (1483: Saw broken finger.)
5	McENTEE Edith	1466	1	1.4	2.9	R	20.25	H: not reliable. R:as above. T: not probative SS135,137	1486: MM said she saw JM’s white van after she was assaulted and running to 7-Eleven.
6	McENTEE Edith	1466	1	2.5	-	R	27.11	No objection (relationship)	1496: MM told her JM would accuse her of being a prostitute and he would tell the children too.
7	McENTEE Edith	1466	1	2.6	-	-	110.18	No objection (relationship)	1489 & 1491: The week before she went missing MM was thinking of buying the children presents. She had too many plans for the kids at Christmas.
8	McENTEE Edith	1466	1	-	(~~4.3~~)	R	23.15	H: Opinion not reliable. R:as above. Children can give edn	1488: JM told the kids to give MM a hard time and gave vulgar notes. (1488: Saw the vulgar notes.)
9	McENTEE Edith	1466	1	-	(~~4.4~~)	R	-	No objection	(1496: Prior to going to Wattle Grove, she saw JM drive past on a number of occasions. On one occasion they followed the car.)
10	McENTEE Edith	1466	1	-	-	R	22.13	H: Opinion not reliable. R:as above. Children can give edn	(1488: Saw the children dressed in clothing stolen from the burglary.)
11	ORWIN Dorothy	1498	53	2.1	2.6	R	50.18	No objection to finger evidence	H: Too remote ‘ not reliable. R:as above. T: not probative SS135,137	1539: JM and MM had a bad marriage. JM used to assault her badly and she used to have black eyes all the time. One time JM broke her finger. MM was terrified of JM. 1562: MM told her JM used to beat her. 1564: MM said JM broke her finger, before separation.
12	ORWIN Dorothy	1498	53	~~2.2~~	~~2.7~~	R	65.24	Abandoned	~~1540: JM told her Damian assaulted her when in Whittlesea, because JM told him to.~~ ~~1562: MM told her JM used to beat her,~~ ~~and get Damian to beat her~~.
13	ORWIN Dorothy	1498	53	2.3	2.9 (5.1)	R	51.10	No objection to edn of Leon’s assault	H: not reliable. R:as above. T: not probative SS135,137	1539-1540: JM told her Leon assaulted her. MM saw JM’s van. MM was too scared to tell the police about JM. (1555 & 1557: Heard the van on the night MM was assaulted. Heard the van again 2 days later.)
14	ORWIN Dorothy	1498	53	3.4	(~~5.3~~)	R	49.11	H: not reliable. R:as above.	1559: MM told her after the burglary that everything was taken, except for a couple of bridesmaids’ dresses. (1501 & 1507/1538: Saw the burglary on 01.06.86).
15	ORWIN Dorothy	1498	53	3.5	~~2.10~~	-	60.18	No objection, with amendments (relationship)	1543 & 1571: Leon had rung the morning of the disappearance – 1571 - and been ringing all week before MM disappeared. ~~CT167: MM agreed “they” were threatening her.~~
16	ORWIN Dorothy	1498	53	3.6	-	-	-	No objection (relationship)	1568-9: After getting her Christmas money, MM was excited about spending it on the children and saying what she would buy.
17	ORWIN Dorothy	1498	53	-	(~~5.2~~)	R	25.12 51.28	H: Opinion not reliable. R:as above. Children can give edn	1511/1542: Simon & Tim would bring home letters in their handwriting, with filthy language on them worse than MM was a whore and prostitute. JM also sent accusing letters. (CT112: Saw & kept for some years the notes from the children/JM.)
18	ORWIN Dorothy	1498	53	9.1	-	-	9.03 152.31	No objection	1570: Bruce Williams told her MM had called him in an emotional state and was returning her key. They had not been fighting.
19	RITCHIE Barbara	1634	221	3.1	2.9	R	67.27	H: Not reliable. R:as above. SS135,137	1648: MM said she saw her husband’s van at the time of the assault.
20	RITCHIE Barbara	1634	221	~~3.2~~	-	-	68.13	Abandoned	~~1650: MM would complain that sometimes JM would not turn up with the children when he was supposed to.~~
21	RITCHIE Barbara	1634	221	~~3.3~~	-	-	69.08	Abandoned	~~1651: MM said Leon was a bit slow and easily revved up by her husband.~~
22	RITCHIE Barbara	1634	221	~~4.4~~	-	-	69.17	Abandoned	~~1654: MM said she was scared of JM having a gun/pistol.~~
23	RITCHIE Barbara	1634	221	4.5	-	-	74.01	No objection	1648: MM said her father and brother attacked her. Their faces were covered.
24	RITCHIE Barbara	1634	221	-	(~~5.1~~)	R	-	No objection (relationship)	(1649: She would see JM outside.) (CT227.23: Saw JM sitting outside with ND’s husband. MM came in very shaken.)
25	SCICLUNA Sharon (nee Niehus)	1663	250	4.1	1.2	R	78.25	No objection to hearsay aspect	R:Too remote T: not probative SS135,137	1663: MM walked into work with a big gash and a big egg on the back of her head and said her husband did it to her.
26	SCICLUNA Sharon (nee Niehus)	1663	250	4.1	1.2	R	-	H: Too remote ‘ not reliable. R:as above. SS135,137	1663: Remembers MM being hit a number of times by her husband. CT252.19: 2-3 times.
27	McENTEE Anthony	1730	301	4.1	1.4	R	86.19	H: Too remote ‘ not reliable. R:as above. T: not probative SS135,137	1736: MM told me JM was hitting her and this happened in their house in Broadford.
28	McENTEE Anthony	1730	301	4.1	~~1.4~~	R	86.19	No objection if time specified	1736: MM told me JM was following MM to/from work.
29	McENTEE Anthony	1730	301	5.2	-	R	89.06	See general objection to ID of JMcM	H: Not reliable. R:as above . SS135,137	1739: MM told me JM’s van was there at the time of the Leon assault. Described shadowy figure.
30	McENTEE Anthony	1730	301	-	(6.1)	R	86.31	H: Not reliable. R:as above . T: Not probative SS135,137	(1736: He saw bruising around MM’s eye and ear.)
31	McENTEE Anthony	1730	301	-	(~~6.2~~)	R	90.17	H: Opinion not reliable. R:as above. Children can give edn	(1740: He saw a disgusting note given to MM from the children.)
32	McENTEE Anthony	1730	301	-	(~~6.3~~)	R	90.12	H: Opinion not reliable. R:as above. Children can give edn	(1740: He saw Tim and Simon wearing clothes stolen from the house after staying with their father.)
33	GAFFNEY John	1751	340	5.1	~~2.8~~	R	40.19 95.21	No objection (relationship)	1752: On Boxing Day about 12 months before MM’s disappearance, MM called and said JM had trapped her and the children.
34	GAFFNEY John	1751	340	5.2	~~3.11~~	R	96.12	No objection, except disguised voice (relationship)	1753: MM often stated she was frightened of JM, receiving phone calls from JM disguising his voice.
35	GAFFNEY John	1751	340	-	2.11	R	96.19	Ruled inadmissible (98.28)	H: Too remote ‘ not reliable. R:as above.	1753: MM said she believed JM caused the severe injury to her face and head.
36	CLARKE Helen	1820	413	5.1	~~3.12~~	R	102.30	No objection (relationship)	1829: MM said her husband was very verbal with her on the phone. He would tell her she was a slut and bitch…He was very angry.
37	CLARKE Helen	1820	413	5.2	-	-	102.30	No objection	1830 & 1834: MM had bought Christmas presents and was very excited about them, particularly the tricycle.
38	LEONARD Erika	1976	490	~~6.1~~	-	-	111.05	Abandoned	~~1982: Believed Leon had been influenced by JM regarding the May assault.~~
39	MYERS Beverley	2336	760	6.1	3.13	R	111.19	H: Too remote ‘ not reliable. R:as above. SS135,137	2336: MM said she was being hit by her husband.
40	MYERS Beverley	2336	760	-	(~~6.1~~)	R	111.26	No Objection	(2337: There were occasions when MM’s husband would turn up at Truck City and MM would hide so he could not see her.)
41	MYERS Beverley	2336	760	-	-	R	113.02	(2338: MM used to come to work with bruises and marks quite a lot. Also CT762.31: Saw bruises on MM.)
42	VALENTINI Nancy	2998	947	6.1	3.14 (6.1)	R	122.12	H: not reliable. R:as above. T: not probative SS135,137	2998: MM told her JM was violent and had a bad temper. MM showed her bruises and said JM had caused them. Black eye. MM said no-one would believe her. (2998: Saw bruises.)
43	VALENTINI Nancy	2998	947	6.2	~~3.15~~	R	123.02	No objection to hearsay aspect	2999: MM drove to her house, hysterical, saying she had a fight with JM, who was chasing her in his car.
44	GOULLET Margaret	ADD	-	7.1	3.17	R	130.15	H: not reliable. R:as above. T: not probative SS135,137	2: After seeing a note including “your dead”, MM said her husband was up to his old tricks. (2: Saw note.)
45	GOULLET Margaret	ADD	-	7.2	-	R	131.08	No objection (relationship)	2: On other occasions MM talked about receiving notes and that her husband was responsible.
46	GOULLET Margaret	ADD	-	7.3	~~3.17~~	R	131.31	No objection, with amendments, other than reference to “gone ballistic” (relationship)	“ballistic” not probative	3: MM identified a caller to TC as her husband. MM would gesture to her to say she was not at work when JM called. 3: After some calls, MM would go outside and say her husband was outside and told her he would come inside and make a scene if she did not go out to speak with him. She said her husband had gone ballistic ~~and she was unsure as to what JM would do~~.
47	GOULLET Margaret	-	-	7.3	~~3.17~~	R	131.31	No objection (relationship)	3: MM identified a caller to TC as her husband. MM would gesture to her to say she was not at work when JM called.
48	GOULLET Margaret	-	-	7.3	R	131.31	No objection (relationship)	3: MM said 2-3 times “here he is, he must be going to write another note”, when MM would not go out as she was terrified of JM. MM pointed out this figure.
49	GOULLET Margaret	-	-	7.4	-	R	132.23	No objection	4: MM said the day before she was hospitalised to call the police if she did not come to work tomorrow.
50	McDONALD Marlene	5930	-	7.1	4.18	R	147.03	No objection (relationship)	2230(NAE): On 28.12.85 there was a violent scene where JM assaulted MM and would not let her leave her matrimonial home.
51	McDONALD Marlene	5930	-	8.2	-	-	147.03	No objection	2231(NAE): The fruit juice business was operating at a serious loss, necessitating her seeking paid employment.
52	McDONALD Marlene	5930	-	8.3	4.19	R	147.03	No objection (relationship)	2233(NAE): JM had harassed and assaulted her.
53	McDONALD Marlene	5930	-	8.3	~~4.19~~	R	147.17	No objection (relationship)	2233(NAE): On 07.01.86 and 08.01.86 JM left or caused to be left abusive/threatening letters, written by him, on her car’s windscreen while she was at work.
54	McDONALD Marlene	5930	-	8.1	-	R	148.04	GENERAL OJECTION TO EVIDENCE OF A “BURGLARY”	H: not reliable. R:as above. Not probative SS135,137	5930: Returned to house being cleaned out.
55	ROSS John	5905	-	8.1	-	R	150.29	GENERAL OJECTION TO EVIDENCE OF A “BURGLARY”	H: not reliable. R:as above. Not probative	5905 (statement dated 12.07.86): Saw JM take items from 40 Wattle Grove on 01.06.86.
56	ORWIN Robert	5908	-	9.1	-	R	151.20	GENERAL OJECTION TO EVIDENCE OF A “BURGLARY”	H: not reliable. R:as above. Not probative	5908 (statement dated 15.07.86): Saw JM take items from 40 Wattle Grove on 01.06.86.
57	PARKER Lynette	1615	197	9.2	-	-	152.31	Need further evidence	1618: Bruce Williams told her that on the night MM said she would see him tomorrow.
58	PARKER Lynette	1615	197	-	-	-	156.26	Abandoned	~~1619: Saw MM with bruises around her eye and face on at least 4 occasions, but MM said she banged her face or one of the children did it.~~ ~~CT:208.17: The 4 times includes the time MM was beaten by her brother.~~ ~~(1619: Saw bruises, as above.)~~
59	McENTEE Patrick	5912	-	10.1	-	-	158.06	No objection	5915: Only knew of relationship with Bruce.
60	McENTEE Patrick	5912	-	10.2	-	-	161.11	No objection. Except reference to vanity bag	Opinion not well founded	5917: Louvres missing and glass on the toilet floor. Vanity bag remained, which was unusual as MM never went anywhere without it.
61	DAY (Anthony) John	2965	895	-	3.16 (6.1)	R	177.20	R:Not reliable Not probative (no time) SS135,137	2972: MM told me her husband did this to her (cause bruises on her face and arms), and she was petrified of JM. (2972: MM would come to work black and blue.) (CT905.8 & CT905.19: Saw bruises 2-3 times.)
62	DAY (Anthony) John	2965	895	10.1	3.16 7.3	R	189.26	R:Not reliable Not probative (no time) T: See above SS135,137	2974: MM said JM was threatening her, and threatened to kill her, about every 2nd day.
63	DAY (Anthony) John	2965	895	-	(6.2)	R	177.20	R:Not reliable Not probative (no time)	(2973: Aware notes were left…Saw MM take a note off the car.)
64	DAY (Anthony) John	2965	895	-	(6.2)	R	177.20	Partial objection	R: Time?	(2973: JM would do drive-bys.)
65	GREENWOOD Lorraine	1624	211	-	~~(5.1)~~	R	165.17	Abandoned, with proviso	(1629: She once saw MM with a bruise on her upper arm.)
66	MAGGS Kim	1657	242	-	~~(5.1)~~	R	168.05	Abandoned, with proviso	(1661: MM would often come to work with bruises.) (CT248.21: Saw bruises a few times. 2-3 times. Top of MM’s arm.)
67	GREEN Jacqueline	1670	259	-	~~(5.1)~~	R	174.01	Abandoned, with proviso	(1676: MM often came to work with bruises on her arms.)
68	GREEN Jacqueline	1670	259	-	~~(5.2)~~	R	174.23	Abandoned, with proviso	1676: Saw a person watching MM in the restaurant. MM told her the person was watching her, which is why she was crying. MM and the person would not talk.
69	COOPER Anne	1804	394	-	~~6.1~~	-	176.05	Abandoned	~~1805: Around 1983 MM came to Edie McEntees with bruises on her face and said JM hit her. This was when she was pregnant with Caroline. Also see CT395.23.~~
70	McINTYRE Patricia (Trish)	2066	553	-	~~6.1~~	R	176.20	No objection (relationship)	2070: Just prior to MM’s disappearance, a white van would cruise past the consol area on 2-3 occasions when MM was working.

NOTES

Witness refers to the witness proposed to give the evidence. All hearsay evidence arises from what the Deceased said, other than the evidence from Dorothy Orwin and Lynette Parker regarding Bruce Williams and the statements from other deceased witnesses.
Deps refers to the first page of the statement in the depositions
CT refers to the page on the committal transcript, with the fourth column referring to the first page of the evidence of the witness
HN refers to the page and paragraph number of the Hearsay Notice, eg 1.1 refers to page 1 and paragraph 1
TN refers to the page and paragraph number of the Tendency Notice, eg 1.1 refers to page 1 and paragraph 1. If ~~struck through~~, the Crown no longer relies on the evidence as tendency evidence, but solely as relationship evidence
R refers to relationship evidence
Transcript refers to the trial transcript from the first 2 days of argument
Comments refers to whether the Crown abandoned a point or the Defence do not object to evidence
Category refers to the categories of evidence under which the relevant evidence falls
Outline of evidence briefly and in general terms outlines the nature of the evidence. Reference should be made to the trial transcript and the relevant statement/evidence. Page numbers cited are from the depositions, unless otherwise indicated. Where evidence is ~~struck through~~, the Crown no longer relies on that evidence.
Paragraphs in brackets relate to non-hearsay evidence
Evidence in bold refers to evidence not referred to in the notices or in the course of argument
“as above” with respect to R evidence refers to the difficulty in fixing the time when the complaint was made, and further that the evidence is not probative to any fact in issue in the trial
“not probative” with respect to T evidence refers to the tests in ss97 and 101
“SS 135, 137” Is a reference to an objection in which the discretion set out in these sections is sought to be exercised against the admission of the item into evidence.

[2011] VSC 241

7 June 2011