R v So (No 2)

Case •

[2023] NSWSC 1052

•

01 September 2023

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: R v So (No 2) [2023] NSWSC 1052
Hearing dates: 14 August – 31 August 2023
Date of orders: 1 September 2023
Decision date: 01 September 2023
Jurisdiction:Common Law
Before: Ierace J
Decision:

(1)   In respect of the application by the Crown to admit certain hearsay evidence:

(a) The identified passages of hearsay evidence in the statements of Susan Carter, Annette O’Reilly, Gary Weavers and Sandra Weavers are admissible as exceptions to the hearsay rule pursuant to s 65(2)(c) of the Evidence Act 1995 (NSW), with the exception of paragraph (34) of Gary Weavers’ statement dated 19 June 2016 and paragraph (8) of Sandra Weavers’ statement dated 19 June 2016.

(2)   In respect of the amended tendency notice dated 28 August 2023:

(a)  the Crown is permitted to adduce as tendency evidence the following evidence in respect of the tendency that Robert Dickie disavowed long term, live-in domestic relationships and engaged in short term sexual encounters in lieu thereof, including (a) having short term sexual partners attend his home for a number of days; and (b) endeavouring to facilitate short term (days rather than weeks) sexual encounters with women by falsely promising long-term relationships with them:

(i)   Annette O’Reilly at paragraph (27) of her statement dated 23 June 2016;

(ii)  Gary Weavers at paragraphs (13) and [14] of his statement dated 19 June 2016;

(iii)  Sandra Weavers at paragraphs (12) and (16) of her statement dated 19 June 2016;

(iv)  Darren Dickie at page 322 of the trial transcript;

(v)  The evidence of “Tracey” concerning her dealings with Robert Dickie;

(vi)  The evidence of “Diana” concerning her dealings with Robert Dickie;

(vii) The evidence of “Mandy” concerning her contact with Robert Dickie;

(viii)The account recorded by police of Robert Dickie’s explanation of his interaction with “Bronwyn” in the entry of a Computer Operated Policing System (COPS) report dated 24 April 2012; and

(ix)  The extracts of emails downloaded by police from Robert Dickie’s iPad.

(b) Direct that, pursuant to s 97 of the Evidence Act 1995 (NSW), despite an absence of reasonable notice by the Crown, the evidence is admissible for the tendency purpose.

Catchwords:

EVIDENCE – Admissibility – Hearsay –Representations made by alleged deceased – Where maker of representations “not available” – Whether representation made in circumstances that make it highly probable they were reliable

EVIDENCE – Admissibility – Tendency evidence – Late notice – Asserted tendency of alleged deceased to disavow long-term relationships, engage in short-term sexual encounters and falsely promise long-term relationships – Whether proposed evidence will have significant probative value

Legislation Cited:

Evidence Act 1995 (NSW), ss 59, 65, 66A, 97, 99, 100, 101, 192A

Cases Cited:

Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579

Dogan v R [2020] NSWCCA 151

Greenaway v R [2021] NSWCCA 253

R v Ambrosoli (2002) 55 NSWLR 603 at 616; [2002] NSWCCA 386

R v Dawson [2022] NSWSC 814

R v Singh (No 4) [2021] NSWSC 75

Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32

Taylor v R [2020] NSWCCA 355

Category:Procedural rulings
Parties: Rex
Kylie So (Accused)
Representation:

Counsel:
L Shaw (Crown)
I Nash (Accused)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)
File Number(s): 2017/279513
Publication restriction: Some witnesses have been assigned pseudonyms in this judgment and an order has been made pursuant to ss 7 and 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting the disclosure of information that tends to reveal their identity.

JUDGMENT

  1. HIS HONOUR: The accused, Kylie So, was arraigned in the Supreme Court on 2 September 2022 on a charge that she murdered Robert Dickie at Elong Elong between 14 and 15 June 2016. The trial commenced at Dubbo, to be determined by Judge alone, on Monday 14 August 2023. At the commencement of the trial, the parties sought a ruling as to the admissibility of certain hearsay statements proposed to be led by the Crown, pursuant to s 192A of the Evidence Act 1995 (NSW). During the voir dire, it became apparent that the relevance of some of those statements in the Crown case constituted tendency evidence. The Crown sought leave to admit the evidence on that basis by serving upon the defence a late notice of intention to adduce tendency evidence (the tendency notice), which was later amended (the amended tendency notice). In view of the partial evidentiary overlap, I have considered the admissibility of the hearsay and tendency evidence sequentially and in the same judgment.

  2. The accused does not concede that Mr Dickie is deceased. Accordingly, I shall refer to the alleged victim as Mr Dickie. The Crown Case Statement, insofar as it is relevant by way of background to the applications, is to the effect that at the time Mr Dickie disappeared, he had resided alone on a rural property at Elong Elong (Mr Dickie’s property) for some years. He was last seen alive on the morning of Tuesday, 14 June 2016, when he and the accused, who had been staying with him since Saturday 11 June 2016, visited the home of a neighbour. Mr Dickie’s mobile telephone last triangulated to a cell tower, which was near Elong Elong, shortly before 3pm on Wednesday, 15 June 2016.

  3. A family member reported Mr Dickie’s disappearance to police on the evening of Wednesday 15 June 2016. Police attended his residence later that night and on multiple occasions in the following weeks and months without success in determining the whereabouts of Mr Dickie or, if he is deceased, his remains.

  4. The Crown case is that the accused killed Mr Dickie by physically attacking him while they were alone at his residence at a time between their return from visiting his neighbour on 14 June 2016 and the time that police attended Mr Dickie’s property the following day. The Crown alleges that in attacking Mr Dickie, the accused’s intention was to at least cause him grievous bodily harm. Her alleged motive was anger. She had travelled from New Zealand at Mr Dickie’s invitation with an expectation that he was committing to a long-term relationship with her but following the visit to a neighbour on 14 June, Mr Dickie told her that she could not stay with him on an ongoing basis, which enraged her to the point that she fatally assaulted him.

The hearsay application

  1. Following receipt of the Prosecution’s Notice pursuant to s 141 of the Criminal Procedure Act 1987 (NSW), the accused notified the Crown that it objected to certain hearsay statements said to have been uttered by Mr Dickie, which are referred to in the Crown Case Statement as follows:

“44   The deceased was known by family and friends to enjoy female company. He routinely engaged with sex workers and younger women for paid sex. This was by way of meetings at the deceased’s own home. The accused disavowed any intention to settle into a long term or live-in relationship.

…

46   In the weeks prior to his death, Mr Dickie told his sister that a Russian woman he contacted on the internet had been to stay at the property. She was there for ten days but he had to ‘get rid of her because she wanted to stay for longer’.

…

65   The deceased told some friends that the accused was coming to visit. He told a close friend, Susan Carter, that the accused thought she was going to stay for a long time, when in fact it was only going to be for a couple of days.”

  1. The Crown issued notices in accordance with s 67 of the Evidence Act identifying certain hearsay evidence it sought to tender, pursuant to ss 65(2) and 66A of the Evidence Act as alternative bases for admission as an exception to the hearsay rule (the hearsay notice). The accused does not dispute that the Crown gave reasonable notice in writing of its intention to adduce the evidence that was the subject of that notice.

Susan Carter

  1. In a statement to police dated Sunday 19 June 2016, Susan Carter stated that she had known Mr Dickie for about 30 years, over which time they had become friends. She recalled a phone conversation with him on 9 June 2016 at 9:17am:

“36   … He told me that he could not go to the opening of my art show which was on that weekend.

37   He said that he couldn’t make my art show that weekend because he had a woman coming from New Zealand and she thought she was going to stay longer with him but he said that she was only staying a couple of days. He told me a bit about her. He said that her father either lives in New Zealand or Australia. He said she is Vietnamese. I said: ‘Is she a prostitute?’ He just sort of umed and ahed and didn’t answer.” (emphasis added)

  1. The Crown seeks to rely upon the italicised words as to Mr Dickie’s state of mind, at least as of the time he expressed his intention, and will submit that he maintained it until the time the accused allegedly killed him, which was five to six days later.

Annette O’Reilly

  1. Annette O’Reilly is one of Mr Dickie’s three siblings. In a statement to police dated Thursday 23 June 2016, she stated that she spoke with Mr Dickie “on the phone at least once a week leading up to his disappearance”. She stated:

“27   [He] told me about a Russian girl he had at his place a few weeks ago. He said she stayed for 10 days and he had to get rid of her as she wanted to stay longer. He said he contacted her on the internet but I don’t know which site. [He] didn’t mention any names but she was 29 or 30 years old. He is friends with a girl named Sherry from Alabama, USA, but she has never come to Australia as she doesn’t fly. He also mentioned a 24 or 26 year old druggie girl from Dubbo that stayed at his house which I think was after the Russian girl. He didn’t mention her name or anything like that. He didn’t talk about any other girls specifically.”

  1. The Crown tendered 15 pages of extracts of email correspondence that had been gathered by screenshots of selected emails, or parts of emails, on Mr Dickie’s iPad between him and two women in the period between 14 April and 9 May 2016. One line of communication was with “Tatjana”, who said she was 29 years old. The other correspondence was with Ekaterina, who said she was 32 years old. Both women wrote that they lived in Russia. In separate emails, both dated 15 April 2016, Mr Dickie wrote to each woman in different terms, but in both, he declared his love for the recipient. He invited Tatjana to travel to Elong Elong where he could “look after” her, and invited Ekaterina to “come here whenever you … want Honey & stay for as long as you want & let me look after you”.

  2. In ensuing emails, Tatjana purported to accept his offer and requested €200 to facilitate her travel. On 6 May 2016, she wrote that she was at an airport and coming to Australia for ten days. She was still waiting on the €200 from Mr Dickie which she needed to demonstrate to the “Customs Committee” that she had sufficient funds for the ten day trip. In his responses, Mr Dickie relates difficulties in sending her the money; he did not confirm that he had done so. The tone of Mr Dickie’s emails to Tatjana deteriorated, with an accusation by him in an email dated 3 May 2016 that she was a “scammer” and in a brief email dated 6 May 2016, he made a derogatory sexual insult. There is no tendered email extract that confirms that Tatjana in fact came to Australia or that she did not travel to Australia.

Darren Dickie

  1. While the Court was reserved on the issue of the hearsay application, the trial proceeded. One of Mr Dickie’s sons, Darren Dickie, gave evidence in chief, without objection, as to what Mr Dickie had told him about his short-term relationships (although the evidence was first-hand hearsay, since there was no objection to it, the evidence was admissible: Dogan v R [2020] NSWCCA 151 at [19]). This topic was further explored in cross-examination, during the course of which Darren Dickie gave evidence of a prior representation made to him by his father that was similar to that alleged by Annette O’Reilly:

“Q. After you became aware that his relationship with Donna Lovejoy finished, other than women from Dubbo, did he speak to you of anybody else that he might have had a relationship with, or wished to?

A. He only used to refer to them as friends, for instance, he’d say, ‘I’ve had a friend over for two or three days’, or ‘this weekend I’m having a friend over’. It was never names.

Q. In terms of friends, other than from Dubbo, do you recall him speaking of anyone?

A. He did speak of a lady a Russian lady. He didn’t say whether she come out from Russia to see him, or whether she was on holidays here, and Russian, or whether she'd in fact lived here.

Q. Do you recall when that was, or how long before he disappeared that he mentioned that?

…

A. Yeah, it wasn’t long before. I know that we had a conversation on my birthday, which is 20 April, and the conversation was in between then and, yeah, when he disappeared.”

Gary Weavers

  1. Gary Weavers and his wife Sandra Weavers were neighbours of Mr Dickie. In a statement dated Sunday 19 June 2016, Mr Weavers stated:

“13.   [Mr Dickie] told me he lived by himself. We had an occasional discussion together where he mentioned he used to go to Forbes and pick up girls from down there and bring them back to his place for the weekend. I remember one occasion he referred to a girl he picked up from Forbes he said: ‘She was no oil painting but she gave good head.’

14.   [Mr Dickie] also told me that some of the girls that he picked up were drug addicts. He said he would keep them at his place for the weekend to try and get them off the drugs. I took it from that that he didn’t use drugs and he seemed to be against drugs. That was about all he ever said about the women. He never mentioned any names.

…

34.   [Mr Dickie] always seemed pretty happy within himself. He mentioned having ‘women all over the world’. As far as I knew that was only over the internet. He had his own opinions of this. He never argued with me over anything. I do remember about a month or so ago [he] rang up our house one night. He spoke to Sandra on the phone. When she hung up she told me that it was [Mr Dickie] on the phone who wanted some oxycontin for a girl he had there who was withdrawing from drugs. Sandra told him no. When she told me this I took all of Sandra’s drugs the next day and hid them in my gun safe which I locked.”

Sandra Weavers

  1. In a statement dated Sunday 19 June 2016, Ms Weavers stated:

“8.   [Mr Dickie] also owns a red Chevy which he calls ‘his Shelby’ and would always talk about and refer to it as the ‘love of his life’ and its’ his ‘only woman’.

…

12.   Although I have never known [Mr Dickie] to have a full time de facto partner I know that he often had women come over to his house for short stays about 1-2 days which were solely for sex. I know this because [Mr Dickie] would tell me and was quite proud of the fact. [He] would often say ‘I will never have another [woman], never get married therefore no one will get my money. I’ll just pay for them and then I can get rid of them and go back to my nice [quiet] life’.”

Relevant legislation

  1. It is accepted that the foregoing constitutes evidence of previous representations for the purposes of s 59 of the Evidence Act (the hearsay rule), which relevantly provides as follows:

“59   The hearsay rule-exclusion of hearsay evidence

(1)   Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

(2)   Such a fact is in this Part referred to as an asserted fact.

(2A)   For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.”

  1. The Crown submitted that the representations are first-hand hearsay that come within s 62 of the Evidence Act as Mr Dickie had personal knowledge of the asserted facts. Sections 65 and 66A of the Evidence Act provide exceptions to the hearsay rule in respect of first-hand hearsay, as follows:

“65   Exception: criminal proceedings if maker not available

(1)   This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2)   The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—

(a)   was made under a duty to make that representation or to make representations of that kind, or

(b)   was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or

(c)   was made in circumstances that make it highly probable that the representation is reliable, or

(d)   was—

(i)   against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable.

Note. Section 67 imposes notice requirements relating to this subsection.”

…

“66A   Exception: contemporaneous statements about a person’s health etc

The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.”

Submissions by the parties

  1. For the purposes of s 65, there is no dispute between the parties that Mr Dickie is not available to give evidence. If he is still alive, his whereabouts are unknown.

  2. As to the representation sought to be adduced from Ms Carter, the Crown relied upon s 65(2)(c), submitting that there were similarities between this evidence and that which was considered by Harrison J in R v Dawson [2022] NSWSC 814. In the same way that Lynette Dawson was socially and physically isolated and thus relied upon a close friend with whom to confide, which enhanced the reliability of what she told her neighbour, Mr Dickie clearly felt he could confide in Ms Carter, who he had known for 30 years, about his intentions in respect of his impending visitor.

  3. The nature of the representation was something that was likely to stick in Ms Carter’s mind and therefore it was made in circumstances that made it highly probable that the representation was reliable in terms of Ms Carter’s recollection.

  4. The accused noted that Ms Carter referred in her statement to Mr Dickie having been interested in a romantic relationship with her:

“[Mr Dickie] and I had a purely platonic relationship the whole time I have known him. I know he did at one stage want a relationship with me but I told him that was never going to happen. He was a lovely friend but not my choice in men.”

  1. The accused submitted that Mr Dickie’s past romantic interest in Ms Carter provided a motive for him “to be less than candid with Ms Carter about the nature of the romantic relationships he was having”, which garnered some support from Mr Dickie not directly responding to Ms Carter’s inquiry as to whether the woman was a sex worker.

  2. In relation to the statements attributed to Mr Dickie by Ms O’Reilly and Darren Dickie, the accused submitted that, assuming the “Russian girl” that Mr Dickie was referring to was Tatjana, the content of the emails concerning her suggested that she had planned to travel to Australia but without confirmation that she had in fact done so, which undermined the reliability of the representations to a point that the circumstances in which they were made could not make it “highly probable” that they were reliable.

  3. The accused did not want to be heard against the application by the Crown in respect of the anticipated evidence of Gary Weavers. The accused submitted that the representation to Ms Weavers concerning his vehicle being “the love of his life” and his “only woman” is not time-specific and therefore could not be demonstrated to be a contemporaneous representation for the purposes of s 66A. It was submitted that the representations made to her, considered together, were not inherently reliable for the purposes of s 65(2)(c), since Ms Weavers thought Mr Dickie had been interested in her romantically at an earlier time, and therefore he had a motive to not be honest in what he told her about other relationships.

Consideration

  1. Both parties accepted that the statements attributed to Mr Dickie by Ms Carter referred to the impending visit of the accused. Evidence of the asserted fact, that he intended to cut short the accused’s visit, was relevant to a fact in issue, namely, a motive for the accused to become angry with Mr Dickie to the point of seriously assaulting him.

  2. In Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 the Court (French CJ, Bell, Gageler, Keane and Gordon JJ) stated, at [71]:

“When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation.”

  1. In considering the circumstances in which the challenged assertion was made, the Court should exclude evidence that tends only to prove the asserted fact and instead focus upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable: R v Ambrosoli (2002) 55 NSWLR 603 at 616; [2002] NSWCCA 386 at [34].

  2. Aspects of the assertion corroborate the proposition that Mr Dickie was referring to the accused’s forthcoming visit. The accused arrived in Dubbo from New Zealand the following day, which was a Friday, and thus she would still be there at least for the weekend. Although the accused is Cambodian by birth, her first language is Vietnamese. According to the Crown Case Statement, Mr Dickie had engaged her services as a sex worker in 2011, and thus was known to him to be a sex worker.

  3. The accused’s submission that Mr Dickie had a motive to play down any romantic intentions he may have in fact had towards the accused because he may have continued to hope for a relationship with Ms Carter is not supported by any of the material on the voir dire. I note that there is no suggestion in Ms Carter’s statement that she wished for a relationship with Mr Dickie or that, as far as she knew, he continued to harbour romantic intentions towards her.

  4. In my view, the representations made to Ms Carter were made in circumstances that make it highly probable that they were reliable, being their long-standing friendship and his apparent ensuing high level of trust in her. That being so, it is unnecessary to consider whether it is also admissible pursuant to s 66A of the Evidence Act.

  5. If the anticipated evidence of Ms O’Reilly and that of Darren Dickie concerning a representation to the effect that a Russian female had recently stayed at Mr Dickie’s property and overstayed her welcome was a reference to the woman known as Tatjana, it is not supported by the email content in May 2016 with Tatjana. By the same token, however, it is not expressly contradicted by those email extracts. In Ambrosoli, Mason P (Hulme and Simpson JJ agreeing) considered the degree to which considerations of reliability apply to the content of the representation, as opposed to the fact that it was made, in applying s 65(2)(b) and (c) of the Evidence Act:

“28   … Since the matter to be determined is the admissibility of the evidence of the person who saw, heard or otherwise perceived the previous representation the focus remains the reliability of the representation, not (directly) the reliability of the asserted fact.

29   But it does not necessarily follow that evidence of events other than those of the making of the previous representation cannot throw light upon the circumstances of the making of that representation and its reliability as affected thereby. Events subsequent to the representation being made might do this, for example a (genuine) express retraction by the maker of the previous representation, or evidence indicating that the person who made the previous representation was incapable of having heard or seen the matter which was the subject of the previous representation …”

  1. I also note that the prior representation made to Ms O’Reilly and the evidence of Darren Dickie do not identify the Russian female by name, and so the extracts of emails concerning Tatjana do not conclusively bear upon the reliability of that evidence.

  2. The representations are similar in content and are made to close family members; one of his sons and one of his sisters. In my view, that circumstance has considerable weight in determining their reliability. I conclude that the representations as evidenced by Ms O’Reilly and Darren Dickie come within the terms of s 65(2)(c), namely, it is highly probable that the representations are reliable. I also note that in both cases, the representations to the witnesses were made within two months of the conversations and are of a nature that the listener would be likely to recall the terms of what was said.

  3. The representations attributed to Mr Dickie in Ms O’Reilly’s statement concerning “Sherry” and the Dubbo “druggie girl” are, in my view, admissible pursuant to s 65(2)(c) of the Evidence Act. It is not suggested that those claims were not made by Mr Dickie and they coincide with anticipated evidence in the Crown case that tends to corroborate their reliability in terms of them reflecting what Mr Dickie believed at the time to be the case.

  4. The prior representations in Mr Weavers’ statement as to Mr Dickie’s comments about his attitude to sexual and romantic relationships are inherently likely to be memorable and, as noted, their admissibility is not opposed. However, the part of paragraph (34) concerning the phone call by Mr Dickie to Ms Weavers is second hand hearsay and not admissible pursuant to s 65(2)(c).

  5. In my view, Ms Weaver’s contested evidence comes within s 65(2)(c) of the Evidence Act. Mr Dickie’s claim to Ms Weavers that his vehicle was his “only woman” is not reliable as to his disavowing of long term relationships, in my view, because it is an observation that may well be a deliberate overstatement intended only to reflect the considerable pride that took in the vehicle. Mr Dickie’s statements about women staying with him for one to two days and solely for sexual services was something that was candid in nature and potentially against his interests, which I take into account in determining that it is reliable.

  6. Accordingly, all of the contested passages are admissible as exceptions to the hearsay rule, except for part of paragraph 34 of Mr Weavers’ statement dated 19 June 2016 and paragraph 8 of Ms Weavers’ statement dated 19 June 2016.

The tendency evidence application

  1. On 22 August 2023, the Crown served on the defence a tendency notice in the following terms.

“The Crown intends to adduce evidence of the tendency of Robert Dickie to act in a particular way in the period 2008 to 2016, namely to:

1.   disavow long term, live-in domestic relationships.

2.   engage in short term sexual encounters in lieu thereof including:

a. having short-term sexual partners attend his home for a number of days; and

b. endeavours to facilitate short term (days rather than weeks) sexual encounters with women by falsely promising long-term relationships with them.

The asserted tendency is relevant in establishing, in relation to his relationship with Kylie So that:

1.   Robert Dickie did not contradict his asserted disavowal of long-term live-in relationships.

2.   Robert Dickie intended a short-term sexual relationship with Kylie So; and

3.    Robert Dickie endeavoured to facilitate a short term (days rather than weeks) sexual encounter by falsely promising a long-term relationship with Kylie So.”

  1. The evidence was initially grouped into four categories of types of evidence. In the amended notice, it was regrouped according to which of the two aspects of the tendency the Crown contended that it supported, although there appears to be a degree of overlap, and modified as to content.

1. Mr Dickie disavowed long term, live-in domestic relationships

  1. This comprised statements allegedly made by Mr Dickie to three witnesses which are relied upon by the Crown as disavowals of long term relationships. The Crown identified another witness in the amended notice (Greg O’Leary) but withdrew its reliance on that person’s evidence for a tendency purpose in the course of oral submissions.

Annette O’Reilly

  1. The Crown relies upon paragraph (27) of Ms O’Reilly’s statement dated 23 June 2021, which is extracted at [9] above.

Gary Weavers

  1. The Crown relied on the prior representations by Mr Dickie in Mr Weavers’ statement dated 19 June 2016 that are extracted at [13] above.

Sandra Weavers

  1. The Crown relied on the prior representations by Mr Dickie in Ms Weavers’ statement dated 19 June 2016 that are extracted at [14] above.

2. Mr Dickie would engage in short term sexual encounters in lieu thereof including: a. having short-term sexual partners attend his home for a number of days

  1. The evidence in support of this proposition comprised accounts by two women of sexual services which they provided to Mr Dickie (“Tracey” and “Diana”), an account by a woman of an approach by Mr Dickie to have a short term sexual relationship with her (“Mandy”), documentary accounts of an encounter by Mr Dickie with a vulnerable woman in 2012 (concerning “Bronwyn”), a statement by a neighbour relating prior representations by Mr Dickie (Aaron O’Leary) and evidence adduced in cross-examination in the trial by two of Mr Dickie’s children (Darren and Damien Dickie).

Tracey

  1. In a recorded interview with police on 5 July 2016, Tracey, who was aged 27 at the time of the interview, said that Mr Dickie would repeatedly approach her in Dubbo for fellatio in exchange for providing her cash to purchase drugs. He would pick her up in his vehicle, drive her to the location of a drug supplier and give her cash to purchase drugs in exchange for her then performing fellatio on him. She provided that service twice. On multiple other occasions, he paid her money to purchase drugs in the expectation that she would perform fellatio, but she did not.

  2. She first met Mr Dickie about nine months before her interview and last saw him approximately two months before the interview.

Diana

  1. In a recorded interview with police on 28 June 2016, Diana, who was aged 24 at the time of the interview, said that she met Mr Dickie in Dubbo about two or three years prior to the interview. He was a paying client in her employment as a sex worker. He would typically phone her and arrange a meeting for that purpose, driving her to his property. She initially said that the last time she provided a sexual service to Mr Dickie was a month before the interview, which she later amended to: “It would be a week, a couple, two weeks” beforehand.

  2. In all, she estimated that she had met with Mr Dickie for paid sexual services “a couple of hundred times”.

Mandy

  1. Mandy was interviewed by police on 9 September 2016. She was aged 35 at the time that Mr Dickie was last seen. She told police that she met a man, who the Crown submits was Mr Dickie, in 2016. She was walking along the street where she lived and Mr Dickie, who was driving past, drove around the block, pulled up and started a conversation with her. He asked her if she was “a fun girl and all the rest of it … Do you drink at all … what is your discretion as in drugs”. He told her that “he wanted to take me to his place” which he said was “just a little bit out of town. About 25 minutes or so”. Mandy said that Mr Dickie “started describing that he had a bar … he didn’t want me for the night or so, he wanted the weekend”.

  2. Mandy said that she sat in his vehicle while she gave Mr Dickie her phone number and they made an appointment to meet. Subsequently she changed her mind. She did not keep the appointment and did not contact him or see him again, although he rang her number and left messages for her. She was uncertain as to when it was that she met him, nominating May and June 2016 as possible times.

Bronwyn

  1. The Crown tendered two statements, Corrective Services case notes (the CS case notes) and a Corrective Services Incident Report concerning Bronwyn, who briefly stayed with Mr Dickie at his property upon her release from prison to parole in April 2012. At the time, Bronwyn was aged 31 and Mr Dickie was aged 67.

  2. The accused tendered a Computer Operated Policing System (COPS) report in relation to the same incident.

  3. A statement to police in 2017 by Jennifer Phillips, who was a Community Corrections Officer, was to the effect that Bronwyn was due to be released from custody on 21 April 2012. She asked to reside with Mr Dickie at his property. The officer contacted Mr Dickie and arranged to meet there. Ms Phillips stated:

“On 19 April 2012, Community Corrections Officer Christine SHUTTLEWORTH and myself arrived at [Mr Dickie’s] address and spoke to him in his back yard. During discussions he advised he had known [Bronwyn] for a long period of time, however when discussing her background, he had limited knowledge. It was explained to him that she had a history of drug use in which he advised he would not tolerate any such behaviours at his home. He was happy to have her reside with him permanently and denied having any intimate relationship with her, they were only friends. He advised he had no issues with Community Corrections conducting home visits to his home. He was also happy to transport her to Dubbo daily for her methadone dosing and appointments. …

On 23 April 2012, [Bronwyn] reported to this Service and confirmed she was residing with [Mr Dickie].

On 24 April 2012, [Bronwyn] telephoned this Service in a distressed state, claiming [Mr Dickie] sexually assaulted her. She advised she packed her belongings and he was transporting her to Dubbo, however on the way decided to leave her on the side of the road in the dark. A truck driver stopped and stayed with her until the Police arrived and transported her to Dubbo Base Hospital.

On 26 April 2012, [Bronwyn] advised Community Corrections [Mr Dickie] had attempted to telephone her.”

  1. A CS case note concerned a phone conversation with Bronwyn on 24 April 2012:

“[Bronwyn] phoned at approximately 9.10am crying advising that she would no longer be staying at her approved post release address as her male friend had allegedly sexually assaulted her last night and claimed he would be demanding sex with her while she remained residing at his address. [Bronwyn] revealed last night she packed her possessions up and he was bringing her to Dubbo when he decided to dump her on the side of the highway in the dark. She claimed she called Police and a truck driver stopped and waited with her until Police arrived. Police transported her to Dubbo Base Hospital for examination and treatment. Informed [her] to wait at the emergency department and I would pick her up.”

  1. A statement by Senior Constable Simon Thorsteinsson is to the effect that he attended Mr Dickie’s property early on the morning of 24 April 2012 and put Bronwyn’s allegation to him. He said:

“… I can recall [Mr Dickie] was quite calm and honest about the allegation providing some background about his relationship with [Bronwyn] and stated he had consensual intercourse with her until she wanted to stop and return back to Dubbo.”

  1. The COPS entry recorded a history of the incident that was taken from Mr Dickie when police attended his property at 5:57am on 24 April 2012. Mr Dickie told police that they had met four or five months before the incident, when Bronwyn was hitchhiking with a friend and he gave them a lift. Shortly afterwards, he learned that Bronwyn was in Wellington Correctional Centre and started visiting her. She nominated him as a person she could be paroled to live with. He picked her up on 20 April 2012 and arranged accommodation for her at a hotel in Dubbo, while he was working in Singleton. He provided her with a phone and some cash. On 23 April 2022, he drove her to his property.

  2. According to Mr Dickie, he drove her back to Dubbo three times the same afternoon to enable her to purchase ice (methamphetamine), which she administered. They finally returned at 11pm and then had sexual intercourse. She then requested to be returned to Dubbo. According to the COPS report:

“DICKIE drove [Bronwyn] part of the way to Dubbo before experiencing vehicle troubles. At this time [Bronwyn] left the vehicle and hailed a passing truck, and contacted 000, stating she had been sexually assaulted. DICKIE left [Bronwyn] at the location and returned to his home.

  1. The COPS report recorded police actions with [Bronwyn]:

“Police attended the location of [Bronwyn] and conveyed her to the Dubbo Base Hospital where she was referred to the sexual assault counsellor Jo KALLUS. Detectives were recalled [sic] and attended the Hospital and spoke to [Bronwyn]. [She] was visibly upset and drug affected. [Bronwyn] disclosed that she had intercourse with DICKIE, however did not disclose that the intercourse was non [consensual]. Given the condition of [Bronwyn], it was arranged for a statement to be obtained at a later time. [She] remained at the Hospital and a SAIK examination was conducted.

[Bronwyn] was vague when speaking to Police and inconsistent when giving her version of events and the location of the alleged assault.

Police attended Lot 76 Wattle Road and spoke to DICKIE. DICKIE consented to Police conducting an examination of the location and provided a version to Police. DICKIE provided the same version as to how the pair met and how long they had known each other. DICKIE stated that [Bronwyn] obtained the ‘ice’ to help her to have sexual intercourse with him. DICKIE stated he had intercourse with [her]. DICKIE stated that shortly after starting [consensual] intercourse with [Bronwyn], [she] removed consent and the intercourse stopped. DICKIE stated that [she] started to act erratically and wanted to be taken to Dubbo. DICKIE then took [Bronwyn] to Dubbo.

The personal belongings of [Bronwyn] were collected and returned to her at the Dubbo Base Hospital. Police observed that the items were neatly packed and in order and appeared to have gathered in a manner not conducive to someone attempting to flee a location.

Follow up to be conducted.

Police contacted the victim about 12:10pm on 24/03/2011 [sic] for the purposes of conducting a victim follow up. The victim stated that she is organising a change in her parole conditions and emergency housing in Dubbo through the Department of Housing. The victim stated she does not wish to proceed with her allegation at this time as she does not feel capable of fronting the Courts.”

Darren Dickie

  1. The Crown sought to rely upon Darren Dickie’s evidence concerning the “Russian lady”, which is extracted at [12] above, and his evidence as to what his father had told him about his short term relationships between 2012 and 2016. This included his father telling him that his means of meeting women included the internet, and telling him: “Occasionally they were locals and occasionally they were from overseas”.

Damien Dickie

  1. Damien Dickie gave evidence to the effect that he was aware that when his father lived at his property he had “very short” relationships with women.

Aaron O’Leary

  1. In a statement to police dated 19 June 2016, Mr O’Leary stated he had known Mr Dickie for fifteen years, six years as a neighbour. He stated:

“11.   [Mr Dickie] always lived at the plaice by himself but I know he has had lots of women escorts come and go from the place. I know this because he has told me about them and sometimes I have seen them. On one occasion two girls came to our place by mistake and I directed them to [Mr Dickie’s] place. This was about two years ago.”

2. Mr Dickie would engage in short term sexual encounters in lieu thereof including: b. endeavours to facilitate short term (days rather than weeks) sexual encounters with women by falsely promising long-term relationships with them

A selection of emails downloaded from Mr Dickie’s tablet

  1. This evidence comprised 106 pages of further email extracts downloaded from Mr Dickie’s iPad, spanning the period 8 March 2008 to 8 June 2016, which includes the emails concerning Tatjana and Ekaterina, referred to at [10] and [11] above.

  2. The balance of emails, in summary, contain exhortations by Mr Dickie to women who were located overseas, interstate or elsewhere in New South Wales, to come and stay with him, often in sexualised terms that ostensibly suggested a long-term commitment, which the Crown submits were consistently false. The emails include correspondence between Mr Dickie and the accused, between 2 June and 8 June 2016.

  3. The accused tendered on the voir dire a bundle of 86 further pages of excerpts of emails that were downloaded from Mr Dickie’s iPad, from the period 12 May 2009 to 10 March 2016. Some emails are between Mr Dickie and “Sherry”. In another sequence concerning “elena russia”, in emails dated 20 and 24 December 2012, he referred to having paid US$1,850 and US$700 respectively to her to travel to Australia to stay with him. The accused separately tendered an email from Mr Dickie to “elena Russia” dated 5 January 2013, the content of which suggested that she still had not arrived in Australia.

Relevant legislative provisions

  1. Section 97(1) of the Evidence Act provides as follows:

“(1)   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.”

  1. The term “probative value” of evidence is defined in the Dictionary of the Evidence Act as follows:

“probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

  1. Sections 101(1) and (2) of the Evidence Act provide:

“(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2)   Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs any prejudicial effect it may have on the defendant.”

  1. I note that s 101(2) was amended on 10 June 2020 by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) so that the word “substantially”, which previously qualified the prejudicial effect, was deleted.

  2. Sections 99 and 100 of the Evidence Act relevantly provide as follows:

“99   Requirements for notices

Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.

100   Court may dispense with notice requirements

(1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party’s failure to give notice under section 97.

(2)   …

(3)   The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice.”

The parties’ submissions

Submissions by the Crown

  1. As to its failure to provide reasonable notice of its intention to rely upon tendency evidence, the Crown submitted that there is no prejudice, since the Crown had given notice of its intention to adduce the evidence, albeit not as tendency evidence pursuant to s 99: Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579 per Hamilton J at [19]. In any event, it is apparent that the accused, as part of her case, will be relying on aspects of the purported tendency evidence in endeavouring to argue that the circumstantial case against the accused is open to other rational hypotheses, consistent with innocence.

  2. The Crown submitted that the evidence has significant probative value because it makes it more likely, to a significant extent, that Mr Dickie had tricked the accused into coming to Australia by pretending to commit to a long term relationship, whereas he in fact intended to terminate the relationship within a matter of days. When the accused realised the ruse, she had a motive to violently attack Mr Dickie, thus committing the offence as charged.

  3. In relation to Ms O’Reilly’s evidence concerning the “Russian girl” and Darren Dickie’s evidence concerning the “Russian lady”, the Crown submitted that the fact that Mr Dickie made a representation in very similar terms in the same time frame is a matter that increases the likelihood that the representation was reliable.

  4. In relation to the emails, in the amended notice the Crown identified eight recipients in the emails of promises of committed relationships other than the accused, stating:

“The emails do not expressly state that [Mr Dickie] was interested in short rather than long term relationships, this is a matter of inference to be drawn by the fact that the emails are to multiple women in the same time periods expressing the same intention which could not be simultaneously fulfilled or held with any sincerity.”

  1. The Crown submitted that s 101(2) had no application, since the tendency that the Crown sought to establish was not about the accused, but rather, Mr Dickie.

Submissions by the accused

  1. The accused has not taken issue with the absence of reasonable notice of the Crown’s intention to adduce tendency evidence, since it was appraised of the evidence in advance, and does not dispute the Crown’s submission that s 101(2) does not apply to the application.

  2. In relation to the evidence concerning the first alleged tendency, the accused submitted that the relevant evidence of Ms O’Reilly and Darren Dickie concerning the Russian female was unreliable, in light of the extracts of emails between Mr Dickie and Tatjana and the absence of any independent evidence that she or any other Russian female had recently stayed with Mr Dickie. During the course of submissions on the voir dire, before Darren Dickie gave his evidence about the “Russian lady”, the Crown submitted orally in relation to Annette O’Reilly’s statement as to what Mr Dickie told her about the “Russian girl”:

“[T]he police obtained emails that have formed part of the bundle which show exchanges with at least one other person. There was a change in name in those emails; one of them is Ekaterina, another one is Tatjana, so it looks like there’s more than one in those exchanges. What the Crown was intending to suggest by that is that the representation made to his sister; that he engaged in short term relationships with the far younger women, including women he met through the internet, does have some support from that internet exchange. There is no evidence that in fact a Russian lady came to Australia.”

  1. The accused submitted that this passage constituted a concession by the Crown at that time that Mr Dickie must have been referring to Tatjana when he made the representation to Ms O’Reilly, and that she did not in fact travel to Australia, so that the representation could not have “significant probative value”. A change in that position in view of the later evidence of Darren Dickie would be unfair to the accused.

  2. The Crown denied that, by the last sentence in the extracted passage from its submissions on the voir dire, it accepted that a Russian female had not travelled to Australia to stay with Mr Dickie.

  3. Ms Weavers’ belief that Mr Dickie had a sexual or romantic interest in her and her observation that he would usually attend her property when her husband was not present, was a relevant circumstance as to the reliability of Mr Dickie’s representation, since he had a motive to convey an impression, true or not, that he had no interest in a relationship with other women and thus was available to her as a potential sexual or romantic partner. In that regard, the accused relied upon observations by N Adams J in R v Singh (No 4) [2021] NSWSC 75 at [22]-[50] to the effect that the relationship between the maker of the representation and the listener may affect its reliability.

  4. The accused conceded that the evidence of Diana and, to a lesser extent Tracey, tends to establish that Mr Dickie regularly had “short-term sexual partners attend his home for a number of days”, but submitted that there is no evidence that such encounters were facilitated by him “promising long-term relationships with them”. On the contrary, both Tracey and Diana make it clear that they only ever expected the encounters to be brief and for the purposes of providing sexual services in exchange for money and/or drugs.

  5. However, the episode with Bronwyn suggests Mr Dickie sought a longer-term relationship with her. Having met her by chance when she was hitch-hiking, Mr Dickie visited her in gaol and offered his residence to her on “a permanent basis”, according to the CS case note entry on 19 April 2012. Bronwyn, not Mr Dickie, terminated her live-in status. The accused submitted that the COPS entry of the account taken from Mr Dickie warranted significant weight because it was provided to police in circumstances where it was likely to be reliable.

  6. The encounter that Mandy described with Mr Dickie suggests any “relationship” she might have had with him would have been the same as those he had with Diana and Tracey; that is, not a short term encounter.

  7. The accused submitted that the emails were consistent with Mr Dickie seeking a long-term relationship. They reflect multiple, persistent and genuine attempts to persuade various individuals to come and live with him on his property. On at least one occasion there is a reference to him transferring a substantial sum of money overseas and on another occasion he wrote, with apparent sincerity, to a third party seeking assistance with arrangements to bring out a woman from Cambodia who he said he intended to marry.

  8. As to the relevant principles, the accused relied upon a summary of principles applicable to the application of s 97 drawn from recent High Court cases by Macfarlan JA (Walton and Wilson JJ agreeing) in Greenaway v R [2021] NSWCCA 253 at [27]-[32].

Consideration

  1. In Taylor v R [2020] NSWCCA 355, Bell P (as his Honour then was) advanced certain propositions concerning the relationship between ss 97 and 101(2) of the Evidence Act. The first five of those propositions are as follows:

“Summary of principles

122 Apart from the principles from the four recent High Court decisions already noted, a review of the authorities, coupled with my own observations in respect of the interrelationship between ss 97 and 101(2) of the Evidence Act, supports the following propositions:

(i)   the starting point is to identify with some precision what the tendering party proposes to establish by the evidence it seeks to tender, and to consider whether the proffered evidence is in fact evidence of the tendency asserted or described in the Tendency Notice: see, for example, Elomar at [348]; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [139];

(ii)   if the evidence is of the tendency propounded, the next step is to ascertain whether or not that evidence is of probative value. That expression is described in the Dictionary of the Evidence Act as meaning ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. That definition mirrors the definition of ‘relevant evidence’ in s 55 of the Evidence Act;

(iii) if the evidence is of probative value, the next question is whether the probative value of the evidence should be characterised as ‘significant’ within the meaning of s 97 of the Evidence Act. This means, as the High Court made plain in IMM, that the evidence must have a probative value extending beyond the mere fact that it is relevant;

(iv)   the assessment of the significance of the probative value of the evidence is to be undertaken on the assumption that the evidence will be accepted by the jury and taken at its highest: see IMM …;

(v)   evidence will be of ‘significant probative value’ if it has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent: (see Hughes at [16]; Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 175-176; (1995) 140 ALR 701; R v Lockyer (1996) 89 A Crim R 457 at 459 (Lockyer)) or if it has more than mere relevance but something less than a ‘substantial’ degree of relevance: see Lockyer at 459; DSJ v The Queen; NS v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9 at [58] and [60] …”

  1. In accordance with the starting point identified by Bell P at [122(i)] above, I note the following with respect to whether the proffered evidence is in fact evidence of the asserted tendency.

1. A disavowal of long term, live-in domestic relationships

  1. The statements concerning the “Russian girl” made to Annette O’Reilly and the “Russian lady” to Darren Dickie are not, considered in isolation, a disavowal of the concept of long term relationships, but rather a declaration that he did not want the particular woman to stay longer that ten days. Considered in isolation, the statements do not support the asserted tendency. However, in the context of other evidence of assertions by Mr Dickie that he did not want long term relationships, it obtains the character of being both illustrative and confirmatory of that tendency.

  2. In my view, a reading of the relevant part of the transcript of the voir dire submissions does not establish that the Crown changed its position as to whether in fact a Russian female stayed with him in the months prior to his disappearance. My understanding is that the Crown’s position remains that there is no evidence that a Russian female travelled to Australia to stay with him in that period, not that in fact it did not happen; police were unable to determine the identity of “Tatjana” in order to make further inquiries: transcript 17/8/23 at p153.21-34. I do not think that there is any unfairness occasioned to the defence by permitting the Crown to rely upon Mr Dickie’s representation to Darren Dickie. I understand that the evidence was different to what was in his statement, so that the defence was taken by surprise by Darren Dickie’s evidence, in that respect. It would be appropriate for Darren Dickie to be recalled for further cross-examination, should the accused wish to pursue that course.

  3. Since Gary Weavers’ reference to Mr Dickie’s phone call with Sandra Weavers concerning Oxycontin and Ms Weavers’ reference to Mr Dickie’s characterisation of his vehicle do not come within exceptions to the hearsay rule, that evidence is inadmissible for all purposes. I note that there is no challenge to the admissibility of the relevant part of Ms Weavers’ statement concerning the same incident.

  4. Ms Weavers’ reference to a prior representation by Mr Dickie that he would not engage in another long-term relationship is clearly supportive of the asserted tendency by Mr Dickie to disavow long term, live-in relationships. In that light, Mr Dickie’s representations that he brought women, including some he knew to be drug users, to his property for one to two days for his sexual gratification bespoke a pattern of behaviour that is consistent with, and provides support for, that assertion.

2. Engaging in short term sexual encounters in lieu thereof including:

a. having short-term sexual partners attend his home for a number of days; and

b. endeavours to facilitate short term (days rather than weeks) sexual encounters with women by falsely promising long-term relationships with them

  1. In my view, the Crown has tendered on the voir dire ample evidence in support of the first limb of the asserted tendency, namely, that Mr Dickie had a tendency to engage in short term sexual encounters, in the form of the records of interview of Tracey, Diana and Mandy, the evidence of Darren Dickie, his statements to Gary Weavers and Sandra Weavers on the topic of short-term encounters and the account recorded by police of Mr Dickie’s explanation of his interaction with Bronwyn.

  2. The accused’s submission that Mr Dickie genuinely offered Bronwyn a permanent place of residence should be gauged against what he told Corrective Services staff. There was no suggestion in the material that he told them that his offer of residence was on the basis of a romantic relationship. In view of subsequent events, it is apparent that his offer to care for her and keep her away from prohibited drugs was a ruse, since once she was at his residence, by his own admission to police he immediately facilitated her accessing methamphetamine and had sexual intercourse with her in circumstances that strongly suggest his motive did not extend beyond having her at his property for short-term sexual purposes.

  3. In relation to the false promising of long term relationships, the evidence relied upon by the Crown is, firstly, the body of extracts of emails to multiple women over many years purporting to offer long-term relationships, and secondly, the falsity of those offers being established by the sheer multiplicity of his entreaties to women via the internet, sometimes to different women at around the same time, and his candid repeated admission to Sandra Weavers over the time that she knew him that he had no intention of committing to a long term relationship. I find that the evidence does support that tendency.

  4. The next question for consideration is whether the evidence is of significant probative value, which is an exercise to be undertaken on the assumption that it will be accepted by the Court (in this case, being a trial by judge alone, rather than by a jury) and taken at its highest; Taylor at [122(ii)-(v)]; Greenaway at [27]-[28]. The guidance provided in those authorities as to the determination of “significant probative value” is in the context of evidence concerning an accused, rather than an alleged victim, although the principles have considerable application in an exercise not involving a defendant.

  5. The evidence of Annette O’Reilly and Darren Dickie concerning the “Russian girly” and “Russian lady” meets that standard. It evidences an action that is consistent with the alleged pattern of behaviour of not having partners live with him for an extended period. In my view, the fact that the representations were to one of his sisters and to one of his sons enhances the likelihood of honesty and thus the reliability of the assertions, even though there is no evidence that independently corroborates the representation.

  6. The representation to Sandra Weavers by Mr Dickie in paragraph 12 of her statement as to his attitude to long term relationships has significant probative value because it tends to disclose his real intentions when he professed to others a desire for long term relationships in the process of inviting them to travel to Elong Elong and stay with him. That is reinforced by the evidence of representations in which he stated a preference for short term liaisons and evidence of him engaging in such liaisons.

  7. I am not satisfied that the evidence of Damien Dickie, and the passage from the statement of Aaron O’Leary concerning what he was told by Mr Dickie, meet the high standard of having significant probative value. Both passages are brief, with scant detail or context.

Determination

  1. I am satisfied that, with certain exceptions, the evidence that the Crown seeks to rely upon in order to seek to establish the stated tendency as part of its circumstantial case, is admissible as relevant to the three stated propositions that are extracted at [37] above.

  2. I note that there is no prejudice to the accused arising from the absence of reasonable notice of the Crown’s application to adduce tendency evidence, and will direct that the notice requirement in s 97(1)(a) be dispensed with pursuant to s 100(1) of the Evidence Act. I note that s 101 of the Evidence Act is not relevant to the Crown’s application.

  3. For the sake of completeness, the accused has anticipated that it will seek to rely upon at least some of that same body of evidence for a different purpose, namely, to establish evidence of motive by others to do harm to Mr Dickie. This ruling does not affect the admissibility of the evidence for that purpose.

Orders

  1. I make the following orders:

  1. In respect of the application by the Crown to admit certain hearsay evidence:

  1. The identified passages of hearsay evidence in the statements of Susan Carter, Annette O’Reilly, Gary Weavers and Sandra Weavers are admissible as exceptions to the hearsay rule pursuant to s 65(2)(c) of the Evidence Act 1995 (NSW), with the exception of paragraph (34) of Gary Weavers’ statement dated 19 June 2016 and paragraph (8) of Sandra Weavers’ statement dated 19 June 2016.

  1. In respect of the amended tendency notice dated 28 August 2023:

  1. the Crown is permitted to adduce as tendency evidence the following evidence in respect of the tendency that Robert Dickie disavowed long term, live-in domestic relationships and engaged in short term sexual encounters in lieu thereof, including (a) having short term sexual partners attend his home for a number of days; and (b) endeavouring to facilitate short term (days rather than weeks) sexual encounters with women by falsely promising long-term relationships with them:

  1. Annette O’Reilly at paragraph (27) of her statement dated 23 June 2016;

  2. Gary Weavers at paragraphs (13) and (14) of his statement dated 19 June 2016;

  3. Sandra Weavers at paragraphs (12) and (16) of her statement dated 19 June 2016;

  4. Darren Dickie at page 322 of the trial transcript;

  5. The evidence of “Tracey” concerning her dealings with Robert Dickie;

  6. The evidence of “Diana” concerning her dealings with Robert Dickie;

  7. The evidence of “Mandy” concerning her contact with Robert Dickie;

  8. The account recorded by police of Robert Dickie’s explanation of his interaction with “Bronwyn” in the entry of a Computer Operated Policing System (COPS) report dated 24 April 2012; and

  9. The extracts of emails downloaded by police from Robert Dickie’s iPad.

  1. Direct that, pursuant to s 97 of the Evidence Act 1995 (NSW), despite an absence of reasonable notice by the Crown, the evidence is admissible for the tendency purpose.

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Decision last updated: 13 November 2023

Most Recent Citation
Cases Citing This Decision

1

R v So (No 4) [2023] NSWSC 1292
Cases Cited

13

Statutory Material Cited

1

Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579
Dogan v R [2020] NSWCCA 151
Greenaway v R [2021] NSWCCA 253