R v Mocenigo (Ruling No. 1)
[2012] VSC 391
•5 September 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0029 of 2012
| THE QUEEN |
| v |
| ADAM MOCENIGO |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2012 | |
DATE OF RULING: | 5 September 2012 | |
CASE MAY BE CITED AS: | R v Mocenigo (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 391 | |
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CRIMINAL LAW: Evidence – Hearsay – Admissibility – Sections 65(2)(a) and 65(2)(b) of the Evidence Act 2008 – Unfair prejudice – Sections 135 & 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A Tinney SC with Ms S Flynn | Office of Public Prosecutions |
| For the Accused | Mr J McMahon with Ms K Argiropoulos | Michael J Gleeson & Associates |
HIS HONOUR:
Adam Mocenigo is charged with the murder of Kristy Lee Hall. Ms Hall is alleged to have been killed by the accused on Saturday 26 March 2011, her body being discovered in the afternoon of Tuesday 29 March 2011 in a creek at Kinglake. Ms Hall had been the partner of the accused in what the evidence will apparently demonstrate was a troublesome relationship leading up to March 2011.
At this early stage of the proceedings it appears that the central issue in the case is whether or not any action taken by the accused was the cause of the death of the deceased woman. The element of intent is also clearly in issue. The defence response to the prosecution opening filed in the matter asserts that “He did not harm or kill the deceased. He did not have any intent to harm or kill the deceased.”
By way of notice dated 31 August 2012, the Director of Public Prosecutions has indicated an intention pursuant to s 67 of the Evidence Act to adduce and rely on hearsay evidence being representations of the deceased Kristy Lee Hall. These representations were made to a number of different people and although the approximate time of the representations can be ascertained, the time of the events which are the subject matter of the representations is more difficult to identify.
On behalf of the accused it is submitted that 10 of those representations out of a total of 32 separate representations should be excluded. After discussion between counsel, and as a result of observations made by me during submissions, at this stage I am required to rule on only three of those in contention. My ruling on the others remaining in contention has been postponed pending evidence to be led on a voir dire.
The relevant provisions of the Evidence Act 2008 are ss 65(2)(b), 65(2)(c) or 66A. In the event that I considered that those requirements were satisfied, then on behalf of the accused it is sought that the representations nonetheless be excluded pursuant to ss 135 and 137 of the Evidence Act.
Section 65(2) of the Evidence Act provides:
(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
…
(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…
Section 66A provides that:
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.
Issues of this nature were recently considered by the Court of Appeal in Azizi v R.[1] That was a case concerned with application of the principles that apply to determining in what circumstances hearsay evidence can be admitted as evidence of the truth of the representation made. In considering these particular sections of the Act, Bongiorno JA (with whom Buchanan JA and Hollingworth AJA agreed) said:
[1][2012] VSCA 205 at [47].
In order to enliven s 65(2)(b), there must be evidence before the court to enable a judgment to be made as to the temporal connection between the occurrence of the asserted fact and the making of the representation.
Further, his Honour said:
Section 65(2)(b) cannot be applied to [a] representation so as to render the hearsay rule in applicable to it without some evidence as to whether the representation was made at the time or shortly after the events described occurred. Absent that evidence, s 65(2)(b) cannot be applied.
His Honour then dealt with s 65(2)(c) and by reference to the judgement of the Full Federal Court in Conway v R,[2] his Honour said:[3]
As the Full Federal Court said, in order to consider the application of s 65(2)(c), there must be evidence of the circumstances which make it not just probable but highly probable that the representation is reliable.
His Honour went on to note that the onus of proving the high probability of the reliability of a representation rested on the party seeking to invoke the section.
[2](2000) 98 FCR 204 (“Conway”).
[3]At [49].
As will be seen, the three representations I am here concerned with and which the Crown seek to put before the jury are each concerned with representations made by the deceased that the accused had either threatened her with being killed or described the way in which, if she were killed, her body might be disposed of. Thus, if admitted, they will be the only indication that prior to 26 March 2011, the accused may have harboured a prospective intention to kill the deceased. This hearsay evidence will certainly seize the attention of the jury and it seems to me that particular care is required before it is admitted.
In R v Bond (Ruling No.4.),[4] an example can be seen of the kind of evidence that might satisfy the requirements of s 65(2)(c) where the hearsay evidence has such significance. In the ruling of T Forrest J his Honour set out the kinds of matters affecting the reliability of the representation about which he was able to be satisfied. The evidence under consideration in that case was significant but it did not involve the deceased describing a conversation in which the accused had threatened to kill her as in this case.[5] His Honour has informed me that he had the benefit of a Basha[6] hearing at which the relevant evidence was examined.
[4][2011] VSC 536.
[5]See in particular [13] and [14].
[6](1989) 39 A Crim R 337.
In relation to each of these representations, the Crown rely on a number of matters. First, these three representations occur at a similar time to each other, and are similar representations. It is put that there is no suggestion that the deceased was unreliable or confused. I am not sure whether that is so or not and in any event the onus would be on the Crown to demonstrate the negative. The terms of the conversations and the context in which the topic arose is not obvious. On the question of her general reliability it is argued that the deceased only used very small amounts of heroin which would put she and Mr Teazis in a mild state of relaxation and did not affect her ability to function normally. The fact that she may have lied about that drug use to family or friends may have been explicable, although there is no evidence about it. Ms Flynn submitted that she made the representations to those people who were closest to her, being the people she could confide in regarding these personal matters and issues relating to her relationship with the accused and there are a number of other representations that she makes about the relationship.
With those submissions in mind I turn to the three matters presently in contention.
Representation 5
Adele Downs is the sister of the deceased woman. In her statement to the police the following representation to be given in evidence is described by her:
Kristy told me that Adam had said to her that if he wanted to kill her he could do it easily. He told Kristy he could kill her, cut her up, put her through a mincer, feed her to their dogs and watch as the dogs shit her out.
She suggested that this representation occurred at the end of February 2011, about a month prior to Kristy Lee Hall’s death.
On behalf of the accused it is submitted that there is no evidence before the court as to when the asserted fact is said to have occurred and specifically no evidence that the representation was made by Ms Hall at the time of or shortly after the events occurring. Therefore it is suggested s 65(2)(b) cannot apply. It is submitted that the requirement of contemporaneity is a condition precedent to the application of the section.
The Crown submits that either s 65(2)(b) or s 65(2)(c) applies – that is, it was either made shortly after the asserted fact occurred and in circumstances that it made it unlikely that it was a fabrication or it was made in circumstances that make it highly probable that the representation was reliable.
In my view, s 65(2)(b) is not complied with. In other words, it cannot be established without further evidence that what was said by the deceased woman was said shortly after what she was asserting occurred had occurred. However, the question remains as to whether the Crown has established compliance with s 65(2)(c).
Pursuant to s 65(2)(c) I am concerned with the circumstances in which the representation was made by the deceased to the narrator – in this case the witness Adele Downs. In her police statement she said that the conversation occurred at her house as she was doing the deceased’s hair. The reaction of both the deceased and the witness to the discussion was apparently one of shock.[7] At the committal proceedings she was asked in cross examination whether, at the time the conversation occurred, she knew her sister was taking any form of medication, heroin or whether she was under psychiatric care.[8] In re-examination she said that on that day she was with her sister for some 8 hours and she was not behaving in a manner that suggested she was affected by any substance or behaving other than normally.[9]
[7]Depositions page 531.
[8]Depositions page 96.
[9]Depositions page 100.
On behalf of the accused, it was submitted that there is evidence to indicate that although this representation had been repeated to others, there were other factors affecting the reliability of what she said. She had lied about her drug habit and she in fact had used drugs regularly with the witness Teazis. She also had apparently lied about her family relationships.
Under this section I am particularly concerned with the circumstances in which the representation is made and whether those circumstances make it highly probable that the representation is reliable. The threshold of admissibility is a high one because this section “…has then potential to operate unfairly against an accused person”.[10] In the circumstances in which this representation was made, apparently in the course of confiding in her sister, it may well be that those circumstances make it highly probable that the representation is reliable. But I cannot presently assess that on the material before me. Whilst I know something of the circumstances of the conversation from the statement and the fleeting reference to the topic by the witness at the committal proceedings, I am in no position to judge whether s 65(2)(c) has been complied with.
[10]See per T Forest J in R v Bond (Ruling No 4) [2011] VSC 536 citing Conway.
As at present advised, I would not admit the evidence but I would reserve to the prosecution the opportunity to call Ms Downs on the voir dire to give further evidence about the conversation and to be cross examined about it.
In relation to the whether or not ss 135 or 137 should result in the evidence being excluded, relevantly, both sections are concerned with unfair prejudice. In my opinion a portion of the representation does carry the risk of unfair prejudice because there is a risk that the jury would use the evidence “…upon a basis logically unconnected with the issue in the case”.[11] That portion of the representation is the section which says:
[11]R v Polkinghorne (1999) 108 A Crim R 189 at 197 per Levine J.
He told Kristy he could kill her, cut her up, put her through a mincer, feed her to their dogs and watch as the dogs shit her out.
However in my opinion the earlier portion:
Kristy told me that Adam had said to her that if he wanted to kill her he could do it easily.
may be admissible without the same risk of unfair prejudice if further evidence about the circumstances of the conversations was to be adduced on the voir dire.
Representation 12
Representation 12 is proposed to be given in the evidence of Julee Hancock to the effect that:
Kristy told me about a conversation she had earlier had with Adam. Kristy told me that Adam had said to her that he was going to chop her up, put her through a mincer, feed her to their dogs, walk their dogs and watch as the dogs shit her out.
Miss Hancock is the aunt of the deceased. This representation was made on the phone and is said to have been made in early March 2011 about two weeks before the death of the deceased. Again, it is by no means clear when the accused is alleged to have said these things.
The admission of this evidence on the material before me is even more difficult. All I know is that the deceased and the witness were speaking on the phone. There is nothing else known about the phone call than that. The witness was not asked about this conversation at the committal. Unlike the earlier representation, there is no direct reference to the accused killing the deceased but rather only a description of him chopping her up and feeding her to the dogs. That is not what the Crown say happened in this case. In my opinion neither the exception pursuant to s 65(2)(b) nor s 65(2)(c) is made out. On the basis of the principles I have already discussed as at present advised I would exclude this evidence pursuant to s 137 of the Evidence Act 2008. However, I would not exclude the Crown from re-visiting this issue if further evidence were adduced on the voir dire.
Representation 23
In its original form, representation 23 was to be given in evidence by Ross Teazis. Teazis was in a relationship with the deceased at the time of her death. The particular portion of his statement that was originally sought to be led was:
Kristy often talked about Adam threatening her. She told me that Adam once said to her that he hit a guy once and if he had have hit her with as much force he would have killed her instantly. He also said to her that he could put her through a wood chipper and then feed her to their dogs.
The time of this representation is unknown.
The learned prosecutor, Ms Flynn, indicated after reconsideration, that the prosecution now only seeks to lead the following portion of the statement:
Kristy often talked about Adam threatening her. He also said to her that he could put her through a wood chipper and then feed her to their dogs.
On behalf of the accused, Ms Argiropoulos submitted that the words in the representation Kristy often talked about Adam threatening her is not evidence of a representation but, as she submitted, a summation or interpretation of one or more representations. There seems to be significant force in that argument.
Whilst not conceding the exclusion of this evidence, Ms Flynn appeared to accept that the opening sentence was devoid of the kind of specificity that would enable it to be admitted into evidence under either of the limbs of s 65 of the Act. For the reasons I have already referred to, I would not at this stage admit the second sentence if for no other reason than by operation of s 137. As such, the evidence of Mr Teazis, as encapsulated in representation 23 is excluded.
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