R v Mocenigo (Ruling No. 3)
[2012] VSC 408
•10 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: | 7 September 2012 | |
DATE OF RULING: | 10 September 2012 | |
CASE MAY BE CITED AS: | R v Mocenigo (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 408 | |
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CRIMINAL LAW – Evidence – Hearsay – Section 65(2)(c) of the Evidence Act 2008 – Unfair prejudice – Section 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:
An issue has arisen which I have outlined on a preliminary basis in Ruling Number 1[1] concerning the admission of hearsay evidence pursuant to notice given by the Director of Public Prosecutions. In short, both in that ruling and in the course of submissions, I concluded that in regard to certain representations I would need to hear the evidence on the voir dire in order to make the kind of assessments that seem to be required by s 65(2)(b) and (c) of the Evidence Act 2008.
[1][2012] VSC 391, [4].
The particular prosecution witness I am concerned with in this ruling is Marian Douglas who has now given evidence on the voir dire for the purpose of determining whether to admit a particular part of her evidence. The witness said she was a friend of the deceased and they undertook the same community services course at the NMIT. They had known each other for about a year when the particular conversation occurred. The witness said that she and the deceased had become quite close. On one occasion, about two weeks before the death of Kristy Lee Hall (which occurred on or about 26 March 2011), they were sitting in her vehicle and had a discussion that, on the particular occasion, lasted for an hour or so.
During that discussion, the witness said the deceased spoke to her as follows:
“….it wasn't safe at home and that she had to get out of there.
HIS HONOUR: It wasn't safe at home?---Yeah, she wasn't safe at home.
MS FLYNN: And she had to get out of there, is that what you said?---Yes.
Did you respond to that in any way?---I asked if Adam was violent at all towards Kristy-Lee and she said, "No, he's more emotionally abusive".
What was her demeanour like when she was saying these things to you?---Very withdrawn and not happy.
Was that usual for her to be like that?---No.
What was she usually like?---She was a very happy, chirpy girl.”[2]
There was then some discussion about how she might be supported if she left home. She said that as to where this particular part of the conversation fell in the overall discussion she could not say.
[2]Transcript, p 198.
I asked the witness some questions before she was cross examined to establish that the deceased actually did say that it was “unsafe” or “not safe” and she insisted she did.
It was clear from the evidence-in-chief that whatever the deceased meant by “unsafe”, it did not mean the threat of physical violence or any threat of death or injury from the accused. Indeed, in cross-examination by Mr McMahon she agreed that deceased specifically told her the accused had never been physically violent. However, the deceased never explained to the witness what she meant by the phrase “emotional abuse”.
It then appeared that the deceased had told this witness several lies about her circumstances, including:
· She had been raised by her grandmother;
· That she had been estranged from a sister who had recently come back into their lives;
· She hated needles and “was dead against them”.
After hearing the submissions of the parties, in my opinion there are a number of difficulties about admitting this evidence. I identify these difficulties on the basis that I assume that the conversation did in fact occur as recounted by the witness.
First, it is not by any means clear what the term “emotional abuse” means in this context. As Mr McMahon submitted, it cannot mean physical violence because the deceased specifically excluded that from the meaning. Ms Flynn for the prosecution agreed that the term could not refer to physical violence and simply wishes to rely on this evidence as evidence of the deteriorating relationship between the deceased and the accused.
I specifically asked the prosecutor to explain how the jury would assess what the deceased was describing by the words “emotional abuse” if this evidence was before them. With all due respect, her answer identified a difficulty with this evidence:
“She's describing a situation where she doesn't feel safe, where it's getting bad and she wants to get out. Whether that means get out of the relationship, get out of the house, she wants to get out, and that is what they have to consider.”
Second, there is a lack of specificity about why there was an issue of safety as opposed to the difficulties created by emotional abuse.
Third, it does appear that other things said by the accused to the witness were not truthful.
The prosecution do not attempt to lead this evidence on the basis that it complies with s 65(2)(b) of the Evidence Act 2008 because it cannot be established that the representation was made by the deceased “…when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication.” They rely instead on s 65(2)(c) on the basis that the evidence suggests the representation was “…made in circumstances that make it highly probable that the representation is reliable.”
In my opinion, the narrative apparently given by the deceased is significantly equivocal and imprecise. The claim that the deceased was not safe at home, but not under the fear of any physical violence is, at first consideration, contradictory and is at least ambiguous. The lack of further exploration or clarification of what the deceased meant by this statement decreases the likelihood that the representation is reliable. When this is combined with her lies to the witness, I could not be satisfied that the representation was made in circumstances that made it highly probable that the representation is reliable.
On reflection, an arguably appropriate basis on which to seek the admission of this evidence might have been s 66A of the Evidence Act 2008 which provides:
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.
The potential difficulty, of course, is that to the extent that the description of the health, feelings, sensations, intention, knowledge or state of mind of the deceased is precipitated by the actions of the accused, to the extent that those actions are part of the representation, the requirement of contemporaneity may not be able to be complied with.
To the extent that my assessment of the compliance with s 65(2)(c) of the Act was in error, I would have excluded the evidence pursuant to s 137 of the Act.
In my opinion, the probative value of this evidence, that is, the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue, is outweighed by the danger of unfair prejudice. The issues in this case concern whether the accused caused the death of the deceased and, if he did, whether he had murderous intent. The statement in question is peripherally relevant to these issues in so far as it demonstrates the deteriorating relationship between the deceased and the accused. However, its probative weight is minimal and the words carry a high risk of unfair prejudice. The unfair prejudice is to be found in the equivocal and non-specific nature of the representation coupled with the use of the words “unsafe” or “not safe”. In my opinion, the words are an implied invitation to speculate about what she might have really meant, though not said.
I note that there will be more than enough direct evidence to indicate that the relationship between the deceased and the accused had failed. Witnesses have already described that problem and the interviews with the accused appear to make that clear enough. An important witness in the case will be Mr Teazis and his role in the life of the deceased is strong evidence that her relationship with the accused had failed and she wished to be with Teazis.
In all the circumstances, I will exclude this evidence.
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