R v Merrick (No 2)

[2016] NSWSC 164

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Merrick (No 2) [2016] NSWSC 164

Hearing dates:

29 February 2016 – 1 March 2016

Date of orders:

01 March 2016

Decision date:

02 March 2016

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

The following evidence is rejected:

 

(1)   Evidence connected with the accused’s supposed act in slashing the tyres of a bicycle owned by Jackson Blackie;
(2)   Evidence connected with the accused’s abusive comments to the deceased’s employer after an error in the calculation or payment of the deceased’s salary;
(3)   Evidence connected with the accused’s supposed hatred of David Blackie, except insofar as the evidence is of a threat made to Mr Blackie coupled with a threat made to the deceased; and
(4) Insofar as it is necessary for me to do so, I reject the evidence relating to the accused’s cocaine use.

 See Annexure A for admissibility of text messages.

Catchwords:

CRIMINAL LAW – evidence – admissibility of context evidence – admissibility of relationship evidence – relevance – where that evidence is said to inform the mental element of the charge – where that evidence is said to go to proof of the dangerousness of the act in question – where that evidence is said to go to a proper assessment by the jury of the accounts that the accused has given to others - whether probative value of evidence outweighed by the danger of unfair prejudice

Legislation Cited:

Evidence Act 1995 (NSW)

Cases Cited:

DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206
HML v R [2008] HCA 16; (2008) 245 ALR 204
JDK v R; R v JDK [2009] NSWCCA 76; (2009) 194 A Crim R 333
Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
R v Andrews [2003] NSWCCA 7
R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506
R v Garner (1963) 81 WN (Pt 1) NSW 120
R v Do (No 2) [2015] NSWSC 111
Regina v ATM [2000] NSWCCA 475
Regina v Frawley [2005] NSWCCA 66; (2005) 152 A Crim R 336
Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334

Category:

Procedural and other rulings

Parties:

Regina
Ross Albert Merrick

Representation:

Counsel:
Mr B Campbell (Crown)
Ms T Evers (Accused)

  Solicitors:
Solicitor for Public Prosecutions (Crown)
Armstrong Felton (Accused)

File Number(s):

2013/00369082

Publication restriction:

Non publication order in relation to evidence of exchanges between the accused and the deceased which specifically deal with sexual matters.

Judgment

1. On 29 February 2016 the accused, Ross Albert Merrick, was arraigned before me on an indictment charging him with the murder of Marika Ninness. He entered a plea of not guilty.

2. The incident that gave rise to the charge occurred late at night on 7 December 2013 at Greenhills. At the time, the accused and the deceased were involved in a de facto relationship.

3. There does not appear to be any dispute that the accused had some sort of physical contact with the deceased that night, with the result that she fell to the ground, subsequently dying from the injuries she sustained. The issue is whether the accused’s actions amount to murder, or manslaughter.

4. In support of the charge the Crown seeks to lead evidence which has been described as “context evidence” and “relationship evidence”. The accused objects to this evidence being given. The question of its admissibility was determined in the absence of a jury on 29 February and 1 March 2016.

5. On 1 March 2016 I made rulings as to the admissibility of the disputed evidence. These are my reasons for those rulings.

The Disputed Evidence

6. It is necessary to set out in some detail the evidence the Crown seeks to lead, and also to refer to evidence which the accused relies upon to place the disputed evidence into its overall context.

The Evidence Sought to be Led by the Crown

7. Prior to the commencement of the trial the Crown provided the accused’s legal representatives with a list of the witnesses from whom context and relationship evidence would be led, together with the relevant paragraph numbers of each witness’s statement. That list was tendered as Voir Dire Exhibit B. Additionally, authorities setting out relevant principles of law were provided.

8. There is a dispute as to whether the information provided by the Crown to counsel for the accused was adequate to put the accused on notice as to precisely what evidence was to be led and for what precise purpose it was to be led. The Crown maintains it gave adequate advice to the accused’s representatives; the converse position is asserted by Ms Evers, for the accused.

9. It is neither possible nor necessary to resolve that dispute. I am satisfied that the nature and substance of the Crown case was disclosed to the accused many months ago, and that the accused’s counsel has been given adequate time, at least this week, if not earlier, to properly address the evidentiary issues.

10. For the purposes of the determination of the admissibility of the disputed evidence, the Crown tendered a volume of material, collectively marked Voir Dire Exhibit A. The exhibit contains the statements of those witnesses nominated in the list of witnesses previously provided to the accused.

11. The accused’s counsel also tendered a volume of material containing statements of witnesses which, it was said, provided necessary context to the impugned evidence.

The Crown Evidence

Jackson Blackie

12. Jackson Blackie is the teenage son of the deceased. He met the accused after his mother commenced her relationship with the accused in 2013. Jackson Blackie witnessed an incident between the accused and deceased in October 2013 that was indicative of a violent relationship. What he saw and heard is set out at [13] – [15] of his statement of 2 October 2014. On an occasion in October 2013 the witness heard an argument between the accused and the deceased whilst at the home the couple had leased. He was in another room at the time. Soon after, the accused spoke to him and said,

“Me and your mum were arguing. I tried to rip her out of the bed. I mustn’t have known my own strength and I must have pulled her out too hard. She is upstairs crying”.

13. Jackson Blackie also had a conversation with his mother in November 2013 during which the deceased intimated that her relationship with the accused was at an end, and the couple was doing no more than seeing out the lease of the rental property in which they resided, before separating.

Felicity Freeman

14. Ms Freeman knew the deceased as a very close friend for some 17 years prior to 2013. Ms Freeman had employed Ms Ninness for about five years prior to the latter’s death.

15. Ms Freeman met the accused in about April 2013, after he had begun the relationship with the deceased. She later became aware of some disharmony between her friend and the accused, evidenced by the accused “de-friending” the deceased and her circle of friends on the social networking site, Facebook.

16. In August 2013 Ms Freeman assisted the deceased to move into a house she had leased with the accused. At the time, she queried why the deceased was moving in with a man with whom she quarrelled constantly and the deceased replied that she loved the accused. Ms Freeman later had a number of conversations with the deceased in which the deceased spoke of ending her relationship with the accused.

17. On 3 November 2013 the deceased sent a series of text messages to Ms Freeman in which she complained of the accused having “rag dolled” her around a bedroom, causing her head to go through a wall. She said she planned to drive herself to hospital, although she later told her friend that she was not seen at Maitland Hospital, and the accused was going to take her to another hospital and acknowledge having hurt the deceased.

18. Later in November 2013 Ms Freeman received a threatening text message from the accused. She subsequently spoke with the deceased and warned her about the possible consequences of living with a violent individual. She also kept a record of text exchanges with the deceased about her relationship with the accused.

19. On 22 November 2013 the deceased told Ms Freeman by text message that she had broken up with the accused, although she was later equivocal about it, and was still in his company when Ms Freeman hosted her work Christmas party on 7 December 2013.

20. On one occasion the deceased told Ms Freeman that she had warned the accused that, if he hit her, he would kill her.

21. In a statement of 6 November 2014 Ms Freeman referred to an exchange of text messages between herself and the deceased in late October 2013 when the deceased told Ms Freeman that the accused was to see a psychologist in relation to his feelings about the deceased, or “why he’s gone fucking nuts over me”.

22. The Crown seeks to lead the records of the text messages sent by the deceased to Ms Freeman, in which the deceased reflected on her relationship with the accused.

23. The statement also provides some information about cocaine use by the accused, and his familiarity with martial arts.

Karleen Jones

24. Ms Jones met the deceased in 2010 and the two became friends, regularly speaking on the telephone or via social networking sites, and seeing each other frequently. She met the accused in April 2013 and understood him to be the deceased’s new boyfriend.

25. From about June 2013 Ms Jones noticed that the relationship between the accused and deceased had deteriorated, with frequent verbal arguments between them. On one occasion after a football match, when driving home, Ms Jones saw the accused hit the deceased in the back of the head, and also the seat headrest, whilst sitting behind her in the car. Ms Jones heard the accused call her a “stupid fucking bitch”.

26. After that, the deceased frequently spoke to Ms Jones about the accused and the way he spoke to her. She told Ms Jones that the accused had threatened to kill her or her estranged husband, David Blackie, if she returned to Mr Blackie.

27. In late October or early November 2013 Ms Jones noticed that the deceased appeared to be injured. After initially stating that she had hurt herself on an amusement park ride, the deceased complained that the accused had thrown her up against a wall and she believed that she had concussion. She complained of pain in her “tailbone”, a likely reference to the coccyx.

28. On 4 December 2013 Ms Jones had a conversation in which the deceased, through tears, told her that she feared for her life and wanted to leave the accused, but could not as he may hurt her. She said she planned to leave him as soon as their joint lease expired.

Adam Debenham

29. Mr Debenham met the deceased in about 2011 through his partner, Ms Jones. In May or June 2013 he was introduced to the accused by the deceased. He accompanied Ms Jones, the accused and the deceased to the same football match referred to by Ms Jones, and observed the accused to berate the deceased for much of the drive home. He saw the accused strike the back of the headrest of the driver’s seat, in which the deceased was sitting.

30. Mr Debenham witnessed the accused use cocaine on an occasion.

Megan Beukers (a.k.a Christofferson)

31. Ms Beukers had known the deceased since childhood. When the deceased left her husband, she initially moved with her children to live with Ms Beukers, remaining there for about 6 months, prior to moving into a house with the accused later in 2013.

32. On an occasion in May or June 2013 the deceased telephoned Ms Beukers from Port Macquarie, asking her to come and pick her up. The deceased complained that the accused had accused her of flirting with another man, and had then left the venue the couple had been at to go home, leaving her stranded. Ms Beukers did not drive to Port Macquarie as asked, and later received a text message from the deceased, who said she had made her way to the accommodation she was sharing with the accused.

33. After that, Ms Beukers frequently saw the deceased speaking to the accused on the telephone and arguing with him.

34. On 27 October 2013 the deceased sent a text message to Ms Beukers and told her that the accused had thrown her against a wall and “knocked [her] out cold”. She complained of pain in her tailbone. In a subsequent telephone conversation the deceased said that she and the accused had argued about a woman with whom the accused had been involved, and the accused had “snapped” and thrown her against a wall.

35. Ms Beukers referred to the relationship between the accused and deceased as increasingly volatile thereafter. The deceased confided in her that she planned to leave the accused but needed to save money in order to do so.

36. On 7 December 2013 the deceased told Ms Beukers that the accused was “racking up”, an expression she understood to refer to cocaine use. Ms Beukers referred to the accused’s persistent use of this drug, and his heightened levels of aggression when affected by it.

Kristy Hardy

37. Ms Hardy worked with the deceased and had done for about two years prior to the deceased’s death.

38. After commencing her relationship with the accused the deceased confided in Ms Hardy that the accused was very controlling, and was preventing her from seeing Mr Blackie. She also said she had had to change the passcode on her telephone as the accused had been checking her text communications.

39. On the day of the Melbourne Cup race in 2013 the deceased told Ms Hardy that the accused had assaulted her a few days before, having picked her up and thrown her against a wall, putting her head through the wall and knocking her out. She complained of having hurt her tailbone. Ms Hardy saw that the deceased was in pain.

40. On 4 December 2013 Ms Hardy suggested to the deceased that she return to her estranged husband. The deceased responded,

“I’m too scared of what Ross would do to me. He told me that if I left he would leave me with nothing and that I would have to pay the rent on my own. He also told me that if I left he would kill me and Dave.”

41. On the day of her work Christmas party Ms Hardy noticed that the deceased attended the function for only a very short time. She told Ms Hardy that the accused objected to her attendance and there had been an argument about it.

Amy Cole

42. Ms Cole first met the deceased in October 2011 and the two became friends. They saw each other regularly.

43. Although Ms Cole never met the accused, she had some telephone exchanges with him on 3 October 2013, when the accused contacted her to see if she knew where the deceased was. He subsequently sent her some text messages in which he referred to the deceased as a “pathetic houso cunt rag”.

44. In November 2013 the deceased told Ms Cole that she had hurt her tailbone when she fell down some stairs.

45. On 26 November 2013 Ms Cole saw the deceased. The deceased told her friend that she saw no future in her relationship with the accused and intended to return to her husband. She said that she had to see out the lease on the property she and the accused rented before she could move. Ms Cole thought her friend was worried about the accused’s possible reaction to the termination of the relationship.

David Blackie

46. Mr Blackie was married to the deceased and the couple had three children together. They separated in early 2013 and the deceased moved out of the marital home with the children. Subsequently, Mr Blackie found out that the deceased had commenced a relationship with the accused.

47. Mr Blackie maintained contact with the deceased although he found it difficult to do that during those times when the accused was in the local area, during periods of leave from a fly in – fly out job he held in Western Australia. The deceased told Mr Blackie that the accused did not want her to have contact with him.

48. In late October or early November 2013 the deceased told her husband she had a sore tailbone, which she said was because a “random” had pushed her into a wall in a pub.

49. About three weeks or so before her death the deceased told her husband,

“If I leave him now he’ll come after me or someone I love. He knows where you live so I can’t move there.”

50. The deceased said that she would have to remain living in the house she and the accused leased until the lease ended.

Charnie Braz

51. Ms Braz was the sister of the deceased. Although Ms Braz lived interstate she and the deceased maintained close contact and a close relationship.

52. Ms Braz met the accused on two occasions, in July 2013 and October 2013. On the first occasion Ms Braz thought her sister and the accused seemed happy; on the second she thought the relationship was less happy.

53. At 6.48 am on 22 November 2013 the deceased sent her sister a text message saying that she had broken up with the accused. In a subsequent telephone conversation the deceased said that the accused lost his temper quickly, had mood swings, monitored her movements, and spoke to her badly. She said she was not going to put up with his behaviour any more.

Greg Hodges

54. Mr Hodges came to know the deceased through his trade as a mechanic. In November 2013 he saw the deceased at his place of business and observed that she seemed to have difficulty in walking and appeared to be in pain. When he asked the deceased how she came to be injured, she said she had fallen. Mr Hodges did not accept her account and pressed her for detail, but she would say no more. When Mr Hodges saw the deceased a few days later, she still showed signs of being in pain, and he again pressed her as to how she was hurt. The deceased told Mr Hodges that her boyfriend had thrown her against a wall.

55. On 4 December 2013 the deceased took her car to Mr Hodges to have some work done on it. Mr Hodges saw that she had bruising to her neck and arms. The deceased asked him,

“Greg, can you do me a favour? […] Can I borrow some money? I need to get out of home and away from my boyfriend before I get killed.”

Constable James Oram

56. Constable Oram is an electronics evidence specialist with the State Electronic Evidence Branch of the NSW Police. He examined the deceased’s Apple iPhone 5 and SIM card and extracted data from both. A schedule to his statement sets out some of the information extracted from the phone, including text exchanges between the accused and deceased on the day the deceased was fatally injured, and summaries of other text messages between the deceased and others.

57. The messages summarised and also later set out in full includes an account given by the deceased to her friend and employer on 27 October 2013 of an assault upon her by the accused, during which she was rendered unconscious and left with a possibly broken tail bone. A series of messages on the subject followed.

58. On 15 November 2013 text messages were exchanged between the deceased and Ms Freeman and the accused and Ms Freeman about a salary error connected with the deceased’s wages. On 21 November 2013 the deceased sent a message to the same witness saying she had broken up with the accused and intended to return to her husband. A series of text messages were exchanged on the subject.

59. Communications between the accused and deceased are also extracted, and the Crown relies upon a number of them, as set out in the list which is part of Voir Dire Exhibit B.

60. Broadly, these messages show running arguments between the accused and the deceased, often using offensive and derogatory language, on 11 May 2013, 12 May 2013, 18 May 2013, 19 May 2013, 15 November 2013, 16 November 2013, 19 November 2013, 21 November 2013, 22 November 2013, 23 November 2013, 24 November 2013, 25 November 2013, and 28 November 2013. A recurrent theme is the accused’s asserted hatred of the deceased’s husband, and his refusal to countenance any contact between the deceased and her husband. They appear to show a volatile and abusive relationship between the accused and deceased, which the deceased tried repeatedly to end, although later reconciling with the accused.

Brett Lovett

61. Mr Lovett is an ambulance officer. He was called to attend the Greenhills Shopping Centre, arriving at the car park there at 12.06 am on 8 December 2013. He saw the deceased lying unconscious in the arms of a woman who identified herself as a nurse. The deceased had a wound behind her left ear which was bleeding heavily. She was unresponsive to all stimuli.

61. The accused was standing nearby. He seemed upset and agitated (though sober), and volunteered to Mr Lovett,

“It was me, we had been drinking and taking coke since 3 o’clock today. We had an argument, she got in my face. My military training kicked in and I elbowed her in the face.”

Matthew Ross

63. Mr Ross is also an ambulance officer, and was working with Mr Lovett on 7 – 8 December 2013. He also spoke with the accused after arriving at the shopping centre car park. The accused told Mr Ross that he and the deceased had an argument and he had elbowed her to the face. He confessed to having been using cocaine since 2 pm.

64. The deceased was treated at the scene and then taken to the John Hunter Hospital.

The Evidence Tendered by the Accused

65. Counsel for the accused tendered a volume of statements and other material which, in the main, forms the balance of the Crown brief of evidence. The exception appears to be a report from Dr Peter Ellis, a forensic pathologist to be called in evidence by the accused.

66. As I understand it, there is no dispute about the admissibility of this material; it simply supplies information about other aspects of the evidence available to the Crown and, it is suggested, is necessary to place the impugned evidence in the overall context of the case to be mounted against the accused.

67. It is not necessary to summarise all of this evidence, particularly so since the Crown Case Statement forms part of the material before the Court and that document largely performs that function. It is, however, of some use to refer to some aspects of the evidence

68. Included in the tender are statements made by witnesses at the George Tavern at Greenhills, where the accused and deceased had been drinking on the night of 7 December 2013. Witnesses noted the accused to be aggressive and “looking for a fight”, and to subsequently engage in an argument with the deceased. He was observed to slam his glass onto the bar before demanding of the deceased, “Are you fucking coming or not?”

69. The accounts of those in the car park who saw the accused strike the deceased differ in some respects, as is to be expected of observations of a fast moving and disturbing event.

70. Adellemaree Thomson noticed the deceased walking across the car park alone, and then saw the accused approach her. The deceased ignored him, and the accused acted in an aggressive manner, sufficiently so that Ms Thomson kept watching the pair, as she thought something was going to happen. She watched as the male waved his arms in an apparent attempt to get the woman’s attention, before using all his body weight to throw what was described as a “right handed hook punch” which appeared to strike the deceased in the face. She collapsed instantly to the ground.

71. Ms Thomson was called to give evidence at committal, and did so on 14 July 2015. She gave details of where she was when she observed the accused and deceased, and of the blow she saw struck, which she described as “more a straight punch” (T9:27), “like a jab” (T9:30) to the right cheek. The accused used his fist (T14:15).

72. William George saw a man and a woman arguing as they walked up Molly Morgan Drive at Greenhills. He thought the woman was trying to get away from the man; he heard her yelling “go away” and “leave me alone”. He saw a lot of hand gesturing and, when next he looked at the couple, the woman was on the ground.

73. Madelyn Butt did not see the blow, but saw an obviously injured woman on the ground with the accused standing over her. He told Ms Butt, “I’ve elbowed her in the face and now look at her”. Referring to the fact that he had “served”, meaning his military duties in Iraq, the accused later said, “she got in my face and it was just an instant reaction.”

74. The accused also told Adam Kuskunovic that “we had an argument and I hit her with my elbow”. Mr Kuskunovic had seen the accused and the deceased apparently arguing, with arms waving around, before he saw the woman fall to the ground. The accused was standing with his back to the witness at the time.

75. To Judith Kuskunovic the accused said, “I have done this before. I should not have done this. She is a lovely person. She has three children.” He continued,

“She was waving her hands around in the air and I just hit her.”

76. Senior Constable Alan Ballardie was called to attend the Greenhills Shopping Centre car park, arriving there at about 12.45 am on 8 December 2013, after the ambulance that took Ms Ninness to hospital had left.

77. After making some inquiries, Senior Constable Ballardie cautioned the accused, who then told the officer that he got into a fight with the deceased who, he said, had been “yelling and waving her arms.” When she “jumped at” the accused, he claimed to have “elbowed her” in self defence. He said that, although she had not been about to hit him, she “surprised” him, and his military training “took over.”

78. The accused was arrested and taken to Maitland Police Station. He claimed to be too intoxicated to be interviewed. He did, however, provide an account of how Ms Ninness came to be injured, telling the custody manager,

“I don’t know how this could’ve happened. We were both at the pub and we had been drinking, both of us. We had an argument and when we left the pub, she was going off. I mean she was in my face and she was waving her hands around my face and arguing, so I swung my arm up and I hit her once. She just fell to the ground and she wasn’t moving. I leant down and there was some blood, and then this Melissa or Malinda (or similar name) came along. She must have my car keys.”

79. The accused was later charged with assault type offences and released.

80. On arrival at the John Hunter Hospital Ms Ninness was noted to have sustained a massive brain injury. She had a hyperacute right convexity subdural haematoma with significant mass effect and mid-line shift. An urgent trauma craniotomy was performed, with evacuation of the haematoma.

81. Intracranial pressure continued to rise however, and a further contusion developed to the brain. Further surgery was required.

82. Despite this, Ms Ninness did not recover, and her Glasgow Coma Score never rose higher than 4. There was no evidence of neurological recovery.

83. On 21 December 2013 Ms Ninness died from the injuries she sustained on 7 December 2013.

84. The accused was arrested and charged with her murder that same day. After being cautioned, the accused said,

“It was all an accident. I bought her an engagement ring. I wanted to marry her.”

The Submissions of the Parties

85. The Crown contends that the evidence, establishing the nature of the relationship between the accused and the deceased, is admissible as relevant evidence: s 55 of the Evidence Act 1995 (NSW).

86. Broadly, the Crown submits that the impugned evidence is admissible to provide the proper background and context in which the charged offence occurred, and to allow the jury to assess the evidence with knowledge of the relevant facts.

87. The Crown contends that the evidence of the volatile and abusive relationship between the accused and the deceased in the months and days preceding the fatal incident, and of threats made by the accused to the deceased, goes directly to proof of the mental element of the charge, and also to proof of the dangerousness of the act of striking the deceased, as contemplated by the alternative charge of manslaughter.

88. It is submitted that the evidence is additionally relevant to a proper assessment by the jury of the accounts that the accused has given to others of his actions on 7 December 2013. It could rebut the accused’s claim that “it was self-defence”, and that his military training “kicked in” unconsciously.

89. The Crown has referred the Court to Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506, R v Andrews [2003] NSWCCA 7, and R v Do (No 2) [2015] NSWSC 111.

90. The accused submits that the disputed evidence has no relevance at all to proof of the charge of murder, or its alternative, and fails to meet the test at s 55 of the Evidence Act 1995. Ms Evers argues that, since the accused does not dispute that he came into physical contact with the deceased immediately before she fell to the ground late on the night of 7 December 2013, any evidence (other than very general evidence) that relates to events prior to the couple’s attendance at the Georges Tavern on 7 December 2013 is irrelevant and inadmissible.

91. Ms Evers further submits that, even if it is relevant, the evidence is so unfairly prejudicial that it must be excluded: ss 135, 137 of the Evidence Act 1995.

92. No complaint is raised by reference to the hearsay provisions of that Act.

93. The accused has referred the Court to DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206, Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463, JDK v R; R v JDK [2009] NSWCCA 76; (2009) 194 A Crim R 333, Regina v ATM [2000] NSWCCA 475, and Regina v Frawley [2005] NSWCCA 66; (2005) 152 A Crim R 336.

Consideration

Context Evidence

94. The question of the admissibility of relationship or context evidence is now the subject of a significant body of jurisprudence. The parties have referred the Court to some of the relevant decisions; there are many more.

95. Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 involved a domestic murder. In that decision the High Court concluded that the nature of the relationship between the appellant and his wife was relevant to the questions to be decided by the jury. Evidence of enmity could assist the jury in determining whether the account advanced by the appellant as to the circumstances of his wife’s death were credible (at [337] per Barwick CJ). Such evidence, going to the conduct of the accused person, would extend to any act of the accused where proof of the act was relevant to whether the accused did the act charged (at [338] per Barwick CJ). Evidence of that nature was held to be admissible where it tended to explain an event, or assist a jury to assess the credibility of differing explanations for the occurrence of the event.

96. Menzies J (at [344]) said that the jury should not be shut off from evidence which could throw light upon the nature of the relationship between the accused man and his wife. To do so would require the jury to determine the issues in the trial in a vacuum.

97. Evidence of a hostile or violent relationship between the protagonists has generally been held to be admissible, not to show that the accused person was of bad character, or had a violent nature (tendency evidence), but as part of the background of the relationship, and as showing the atmosphere in which the charged event occurred, an atmosphere which could render it less likely that the charged offence occurred in the way the accused person asserted it had: R v Clark [2001] NSWCCA 494 (2001) 123 A Crim R 506; R v Garner (1963) 81 WN (Pt 1) NSW 120.

98. Where the relationship is capable of explaining the accused’s conduct, or of making the accused’s account of that conduct less likely, evidence of it is admissible.

99. That can be demonstrated by looking at evidence of the relationship between the protagonists from the opposite perspective: that is, if the relationship between the accused and the deceased had been an unswervingly loving and devoted one, where the accused was both careful and solicitous of his partner, would evidence of that fact be relevant to the determination of the charge before the Court? Clearly it would be of great relevance, since it would be capable of rebutting the Crown’s case of a deliberate and forceful assault with an intention to do harm.

100. In this case, the Crown must prove not just the actus reus but also the mental element of the offence, that is, an intention to do grievous bodily harm or to kill.

101. Although Ms Evers does not concede it, there is clearly an issue about both the physical and the mental aspects of the charge. The onus will fall on the Crown to prove to the requisite standard both facts in issue: the nature of the blow struck to the deceased by the accused; and the accused’s intention at the time the blow was struck. The Crown relies upon the disputed evidence as relevant to both.

102. In my view, evidence of the nature of the relationship between the accused and deceased in the period leading up to the incident is plainly relevant to both facts in issue.

103. Whilst the accused does not dispute some physical contact between him and the deceased prior to the deceased falling to the ground on 7 December 2013, his concession falls far short to an admission of having murdered Ms Ninness, or even to unlawfully killing her. Ms Evers characterised her client’s acknowledged act as similar to what might be done to wave away an insect annoyingly buzzing about one’s face; such an act does not import any force, or any intent to kill or harm. It is unlikely to be an act that could be regarded as dangerous.

104. The accused’s admissions to others to having struck Ms Ninness are not, as was submitted by his counsel, consistent, and there is little clarity there. To Mr Lovett, the accused said he had elbowed the deceased in the face because she got in his face and his military training kicked in. He said something similar to Mr Ross, stating he “struck her with [his] elbow”. To Ms Butt the accused said he had elbowed the deceased in the face, that being an instant reaction because Ms Ninness was “in his face”. He told Mr Kuskunovic that he hit the deceased with his elbow, and Mrs Kuskunovic that he just hit her. The accused raised the issue of self-defence with Senior Constable Ballardie, saying the deceased jumped at him and he elbowed her, his military training having taken over. There was another account to the custody officer at Maitland Police Station of having swung his arm up and hitting the deceased. There is some footage of the accused apparently demonstrating what he had done. On his arrest on 21 December 2013 the accused said that it had been an accident.

105. It will fall to the jury to assess these comments and determine what, if anything, the admissions prove. To ask the jury to undertake that task in a complete vacuum, knowing nothing about the relationship between the accused and the deceased apart from what was observed of them by others on 7 December 2013 at Greenhills, would in my view be quite wrong, and completely artificial. The jury could be left with an unrealistic and misleading picture of the relationship between the accused and the deceased.

106. It would give the jury no context against which they could assess the credibility of the accused’s various assertions about how the deceased came to be injured. It would also give no context to what appears to be his case at trial, that being that he did no more than wave the deceased away, the gesture being an instinctive movement induced or influenced by his former service in the Armed Forces, one which was without any intention to harm or kill, and without any force.

107. I do not regard it as an answer to that proposition to suggest that the Crown’s case is not a circumstantial one and evidence exposing the nature of the relationship between the accused and deceased is therefore incapable of informing the jury’s assessment of the evidence. It is true that the Crown’s case is not wholly circumstantial: there is evidence of a dispute between the accused and deceased at the tavern that night; and evidence of some sort of continuing altercation between them as the deceased walked up Molly Morgan Drive. There is evidence from one witness, Ms Thomson, that the accused struck the deceased by punching her forcefully, although the capacity of that witness to observe the events of which she gave evidence at committal is challenged by the accused. Indeed, Ms Evers has indicated that a surveyor is to be called in the defence case to give evidence that, it is suggested, will cast significant doubt upon the reliability of Ms Thomson’s evidence.

108. However, an important feature of which there is no direct evidence is the accused’s state of mind; the Crown can only ask the jury to draw an inference about what the accused intended when he came into contact with the deceased at the relevant moment. Necessarily, the jury would be aided in determining what inference can and should be drawn by evidence of the broader relationship between the accused and Ms Ninness, evidence which goes beyond the events of 7 December 2013.

109. The starting point must be to ask, is the evidence is relevant.

110. The evidence is capable of establishing the nature of the relationship between the accused and deceased so that the evidence is not assessed in a context divorced from reality. It can inform the jury’s consideration of the accused’s intention when he had contact with the deceased immediately before she dropped to the ground. It can assist the jury to assess the credibility of the accused’s assertions about what happened to the deceased. It is capable of rebutting the accused’s case. The evidence must, therefore, be relevant. It is admissible pursuant to s 55 of the Evidence Act 1995.

111. In HML v R [2008] HCA 16; (2008) 245 ALR 204, an authority referred to in oral submission by Ms Evers, and which considers (in the context of a sexual assault allegation) the admissibility of relationship evidence, the High Court referred to the role of common sense in the application of the law. The statement is apposite,

“In Director of Public Prosecutions v Boardman in a passage later cited with approval in this Court, Lord Cross of Chelsea said that there are cases in which to exclude evidence of the kind presently in question would be an affront to common sense. The law must apply a more definite test, but common sense and relevance are closely related. A jury's assessment of some kinds of evidence is likely to be based more upon common sense than upon scientific method” (at [6], per Gleeson CJ, Crennan and Kiefel JJ, citations omitted).

112. The accused submits that, even if the evidence is relevant, its probative weight is slight, and readily outweighed by the danger of unfair prejudice to him in admitting the evidence. Reliance is placed on ss 135 and 137 of the Evidence Act 1995.

113. Those provisions are as follows.

“135   General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a)  be unfairly prejudicial to a party, or

(b)  be misleading or confusing, or

(c)  cause or result in undue waste of time.

……..

137   Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

114. Section 135 provides for the Court to exercise its discretion to exclude evidence if the probative value of the evidence is substantially outweighed by the danger of one or more of the considerations set out in s 135(a) – (c).

115. I have already concluded that the evidence is relevant, that is, it has probative value. The principle facts in issue in this trial are the nature of the contact between the accused and the deceased that caused her to drop to the ground, and the accused’s intention at the time. The disputed evidence is of direct relevance to both facts in issue. It is my conclusion that the probative value of the evidence is very high.

116. The accused argues that the evidence is unfairly prejudicial, and would result in a waste of the time necessarily spent in cross-examination of the particular witnesses.

117. I do not regard the latter as warranting the exclusion of the evidence. Whilst it will be necessary for counsel to explore the evidence with the relevant witnesses, and time will be taken in that exercise, I would not characterise that time as having been wasted. It will be time spent probing considerations of relevance to the facts to be decided by the jury. In those circumstances, I am unable to conclude that the probative value of the evidence is substantially outweighed by the danger of the Court’s time being wasted.

114. Nor am I able to conclude that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the accused. Any evidence which may have the capacity to prove a charge against an accused person is prejudicial, but the prejudice is not necessarily unfair. Ms Evers did not identify the way in which her client would be unfairly prejudiced, and I am content that appropriate directions can be given to the jury as to the basis of the admission of the evidence, and how it may be used, which would address any potential danger of unfairness.

115. I would not exercise the Court’s discretion to exclude the evidence pursuant to s 135.

116. Section 137 requires the Court to exclude the evidence if the probative value of the evidence is outweighed by the danger of unfair prejudice. I have concluded that the evidence has substantial probative value. For the reasons already stated, I do not consider the value of the evidence of the relationship between the accused and deceased to be outweighed by the danger of unfair prejudice.

117. I do not, however, draw that conclusion in relation to all of the evidence advanced as context or relationship evidence.

118. Evidence which goes beyond a capacity to directly illuminate the relationship between the accused and deceased, such as the nature of the relationship between the accused and some of those associated with the deceased, has some relevance, but it is not high. There is, in my view, a danger of potential prejudice to the accused, in circumstances where the value of the evidence is outweighed by the danger of prejudice.

119. Accordingly, the following evidence is rejected,

1. Evidence connected with the accused’s supposed act in slashing the tyres of a bicycle owned by Jackson Blackie;

2. Evidence connected with the accused’s abusive comments to the deceased’s employer after an error in the calculation or payment of the deceased’s salary; and

3. Evidence connected with the accused’s supposed hatred of David Blackie, except insofar as the evidence is of a threat made to Mr Blackie coupled with a threat made to the deceased.

124. It will be necessary for counsel to use care when leading evidence from the relevant witnesses, or cross-examining them, so that comment straying into inadmissible evidence is not invited.

125. Because the parties have expressed some reservation in applying these rulings to the volume of text messages sought to be led by the Crown (and supplemented by the accused) I have set out a list of text messages which are admissible consistent with my reasons in an annexure to the judgment.

Evidence of Cocaine use by the Accused

126. The Crown seeks to lead evidence of the accused’s use of cocaine on the day of the incident leading to the death of Ms Ninness, insofar as it may be relevant to the question of the accused’s capacity to form an intention. It was submitted that the evidence could be placed before the jury, in fairness to the accused.

127. Counsel for the accused has specifically disavowed any intention to raise intoxication as relevant to proof of the offence charged, or its alternative.

128. On that basis, the Crown does not press the evidence and, insofar as it is necessary for me to do so, I reject it.

129. Although the evidence may have some relevance to the accused’s aggressive demeanour on 7 December 2013, I do not think it adds in any material way to proof of the Crown case, and there is a danger that a jury may misuse the evidence. The probative value of the evidence is so slender that it is necessarily outweighed by that danger.

130. Should the accused’s concession as to his sobriety and the lack of any relevance to his state of mind prove misplaced, or be withdrawn or diminished in the course of the trial, this aspect of the evidence and its admissibility can be reconsidered.

**********

ANNEXURE A

131. It is noted that, in light of the rulings the Court has made as to the admissibility of evidence of text messages exchanged by the accused and deceased, the accused proposes to lead a further large volume of text messages. The Crown does not object to that course.

132. Unfortunately, the Crown’s text material, Voir Dire Exhibit A, is differently referenced to the defence material, Voir Dire Exhibit 16. It is therefore necessary to reference both exhibits in the following lists.

133. Because the text evidence proposed to be led by the accused is so voluminous, it is simpler to list those messages which are excluded from evidence, than those which are admitted, by reference to the numbering in Voir Dire Exhibit 16.

Excluded Text Messages from Voir Dire Exhibit 16

38227 - 38263

38544 - 38545

39075 - 39077

39084 - 39086

39097

39100 - 39102

39516 - 39517

39813 - 39814

40059 - 40062

40066 - 40069

40169 - 40170

40848 - 40861

41615 - 41617

Text Messages from Voir Dire Exhibit A Which are Admitted

96 - 141

339 - 349

394 - 568

1232 - 1257

1766 - 1776

1805

1821 - 2127

2182 - 2206

2219 - 2269

2313 - 2322

2339 - 2359

2392 - 2416

2641 - 2691

Amendments

01 April 2016 - Amended non-publication restriction

Decision last updated: 01 April 2016