R v Stone (Ruling No 1)
[2018] VSC 625
•19 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0304
| THE QUEEN | |
| v | |
| KATE KATHLEEN STONE | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 15 and 16 October 2018 |
DATE OF JUDGMENT: | 19 October 2018 |
CASE MAY BE CITED AS: | R v Stone (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 625 |
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CRIMINAL LAW – Evidence – Murder – Woman charged with murder of defacto partner – Relationship evidence – Whether deceased’s mother’s observations of instances of verbal and physical abuse between the accused and the deceased relevant – Wilson v the Queen (1970) 123 CLR 334, considered – DPP v Paulino (Ruling No 1) [2017] VSC 343, considered – Whether probative value of evidence outweighed by danger of unfair prejudice to the accused – Hearsay evidence – Whether representations made by the deceased to his mother concerning an earlier incident with the accused admissible – Maker of statements not available – DPP v Asling (Ruling No 2) [2017] VSC 38, considered – Evidence Act 2008, ss 55, 65(2)(b), s 66A and 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Mahady | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr P Kilduff | Robert Davis Barrister & Solicitor |
HER HONOUR:
The accused is charged with the murder of Darren Anthony Reid on 19 December 2016 by dousing him in a mixture of toluene/xylene, commonly termed a ‘thinner’, and setting fire to him.
The defence case is, in short, that the accused had nothing to do with the death of Mr Reid, and that instead, Mr Reid was doused in fuel and set alight by an intruder who attended the shared home of the accused and Mr Reid that night, in company with two other men. The accused has previously identified Jason Baxter as the intruder who set fire to the deceased, and one of those two other men as ‘Gibbo’ or Paul Gibson.
It follows that there is no issue that the deceased was murdered. The sole issue in this trial is whether the accused was the murderer.
At trial the prosecution seeks to lead evidence from Valda Webb, the mother of the deceased, as to the nature of the relationship between the accused and the deceased. That evidence may be categorised as follows:
(a)evidence that Ms Webb observed instances of verbal and physical abuse between the deceased and the accused over the years, including arguments on many occasions during which the accused would hit and punch the deceased and ‘be in his face’;
(b)evidence that in 2010 Ms Webb observed a particular argument between the deceased and the accused in which the accused hit and punched the deceased before the deceased’s brother intervened. The accused tipped a television over and obtained a kitchen knife whilst yelling and swearing. The accused then pointed the kitchen knife at the deceased’s brother saying “I’m going to kill you”. The accused and his brother had to restrain the accused on the couch to disarm her (‘2010 incident’);
(c)evidence that on an occasion in early November 2016 Ms Webb received a phone call from the deceased before 9 am. The deceased called her reverse charge from a public telephone and said that at 2 or 3 o’clock in the morning the accused had chased him down the street with a knife, threatening him. The deceased said “I’m scared mum. I’m in fear of my life”. The deceased also said that he had been locked out of the house with no keys and no wallet. The deceased further said that he was petrified and told his mother to keep her telephone close by and to expect a phone call from police. (‘November 2016 incident’);
The prosecution filed a Hearsay Notice pursuant to s 67 of the Evidence Act2008,[1] with respect to the November 2016 incident in which s 65(2)(b) is relied upon as the path to admissibility. The prosecution additionally relies upon s 66A of the Act.
[1]Evidence Act2008 (Vic), (‘the Act’).
The prosecution argues that this evidence is admissible as relationship and context evidence in that evidence of the poor relationship between the accused and the deceased could rationally affect the assessment of the probability of the existence of a fact in issue, namely whether it was the accused who killed the deceased. With respect to the hearsay evidence of the November 2016 incident, the prosecution argues that it has satisfied the requirements of both ss 65(2)(b) and 66A of the Act.
The accused argues variously that:
(a)none of the relationship evidence is relevant to the probability of the existence of a fact in issue;
(b)if relevant, the evidence should be excluded under s 137 and s 135 of the Act because it is highly prejudicial and/or misleading or confusing and/or might cause or result in undue waste of time;
(c)if relevant, the evidence should be excluded under s 76 of the Act, as it is mere opinion; and
(d)the evidence of the November 2016 incident fails to meet the tests specified in ss 65(2)(b) and 66A of the Act, in that the representation was not made ‘when or shortly after’ the asserted fact occurred.
Analysis
Relevance
Evidence is admissible if it is relevant. The test for relevance established by s 55 of the Act requires only a ‘minimal, logical, connection’ between the evidence and a fact in issue.[2] What is required is that the evidence in question be ‘reasonably capable‘ of ‘rationally affect[ing], directly or indirectly, the assessment of the probability of the existence of a fact in issue’.[3] That is, the evidence is relevant if it has the capacity to do so and not merely only if it would do so.
[2]Papakosmas v The Queen (1999) CLR 297, [81] (McHugh J).
[3]HML V The Queen (2008) 235 CLR 334, 351 (Gleeson CJ).
The prosecution relies upon the oft-cited passage in Wilson v the Queen,[4] where Menzies J said:
Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.[5]
[4](1970) 123 CLR 334, (‘Wilson’).
[5]Ibid 344 (McTiernan and Walsh JJ agreeing).
The defence refers to what Bell J said in DPP v Paulino:[6]
While so-called ‘relationship evidence’ has been held to be so relevant, the courts have cautioned against ‘[slipping] into a habit of admitting evidence which … cannot tend to prove motive or to explain the acts charged merely because it discloses some incident in the history of the relations of the parties’,[7] have drawn attention to the vagueness and generality of the expression[8] and have often preferred to consider whether, without categorisation, particular evidence in question is relevant to the probability of the existence of a fact in issue.[9]
[6]DPP v Paulino (Ruling No 1) [2017] VSC 343 (citations in original), (‘Paulino’).
[7]R v Barbour[1939] 1 DLR 65, 67 (Duff CJ), approved by R v Tsingopoulos[1964] VR 676, 681 (Deane J), 684 (Gowans J).
[8]R v Clark(2001) 123 A Crim R 506, 559 [93], 562 [99] (Heydon JA, Dowd and Bell JJ agreeing), (‘Clark’).
[9]Frawley v R(1993) 69 A Crim R 208, 222-3 (Gleeson CJ, Shelley JA and Carruthers J agreeing); Clark (2001) 123 A Crim R 506, 562 [99] (Heydon JA, Dowd and Bell JJ agreeing).
Turning to the particular evidence, in my view what might be termed evidence of the general poor relationship between the accused and the deceased is relevant to the probability of the existence of the fact in issue whether the accused in fact killed the deceased. Notwithstanding that Ms Webb states that there were periods in which she did not have the opportunity to observe that relationship, which spans some 25 years, the evidence relied upon by the prosecution is of Ms Webb’s observations over a period of time and is therefore evidence which has the capacity to place the alleged incident in context. That the relationship between the accused and the deceased revealed by the evidence was not as violent as some other domestic relationships considered by courts in this context does not deprive the evidence, in this case, of its relevance.
On the other hand, I consider that evidence of the 2010 incident is irrelevant. While the accused argues it is the lack of proximity between the 2010 incident and the deceased’s murder which deprives this evidence of relevance, in my view the lack of relevance derives from the fact that the accused is said to have threatened not the deceased, but the deceased’s brother, with the knife. The 2010 incident might have begun as an argument between the accused and the deceased, but it significantly changed character following the intervention of the deceased’s brother.
Accordingly, as it is not relevant, evidence of the 2010 incident will be excluded by operation of s 56(2) of the Act.[10]
[10]Even if I were of a different view as to the relevance of the 2010 incident, I would exclude this evidence under s 137 of the Act as the danger of unfair prejudice to the accused outweighs its probative value. In particular, there is a danger of impermissible reasoning that the accused has a general propensity for violence.
Evidence of the November 2016 incident is clearly relevant. It is sufficiently proximate to the incident alleged, and capable of revealing the state of the relationship between the accused and the deceased, as well as the deceased’s fear of the accused, during the month prior to the deceased’s death.
Exclusion of prejudicial evidence
Section 137 establishes a mandatory requirement to refuse to admit prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. Probative value is defined in the dictionary to the Act to be ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. Considerations of reliability and credibility do not come into the assessment of the probative value of evidence under s 137.[11]
[11]IMM v The Queen (2016) 330 ALR 382, [39].
The arguments of the accused as to the low probative value of the impugned evidence are directed overwhelmingly towards the 2010 incident. As I have already determined that evidence of the 2010 incident is irrelevant and therefore inadmissible, I need not address those arguments in that context.
But, I accept the arguments of the accused that the probative value of the general relationship evidence is low. Ms Webb’s observations of instances of verbal and physical abuse ‘over the years’ are vague and unable to be fixed in time. It is unclear what ‘be in his face’ actually means or on how many occasions over how many years she witnessed such incidents.
The accused argues that the prejudice that would arise if the evidence is admitted finds its source in ‘strongly held and emotional beliefs' concerning domestic violence, and the danger thereby created that the jury might use the evidence to make a decision on an improper, perhaps emotional, basis.[12] The living conditions and circumstances of the accused’s family are said to heighten this prejudice. Further, the accused contends that the prejudice cannot be overcome by judicial direction.
[12]Papakosmas v The Queen (1999) 196 CLR 37, [92] citing Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985) vol 1, [644].
In my view, given the vague nature of the general relationship evidence in this case, its probative value is low and it does have the potential to cause unfair prejudice to the accused in that the jury may characterise her as an habitually violent woman on the basis of unclear evidence.
Accordingly, I propose to exclude the general relationship evidence under s 137 of the Act.
However, I consider the probative value of the evidence of the November 2016 incident to be high. While admitting that evidence may occasion some prejudice to the accused, I do not consider any such prejudice to be unfair or incapable of being dealt with adequately by direction. In short, in the balancing exercise, the probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused.
Accordingly, s 137 of the Act does not compel the exclusion of the evidence of the November 2016 incident.
Nor do I consider that I should exclude the evidence in exercise of the discretion available under s 135 of the Act. As just discussed, it is not unfairly prejudicial and nor could it be said to be misleading or confusing, or result in undue waste of time.
Opinion
The evidence to be given by Ms Webb is not evidence of an opinion. Rather it is direct evidence of what she saw and heard. Accordingly, the evidence does not infringe the opinion rule in s 76 of the Act. It is therefore unnecessary to consider the operation of any exception to that rule.
Hearsay
As already stated, the prosecution relies upon the dual basis of ss 65(2)(b) and 66A to admit the hearsay evidence of the November 2016 incident. These are exceptions to the general exclusionary rule regarding hearsay evidence in s 59(1) of the Act.
Section 65 of the Act applies, in a criminal proceeding, if a person who made a previous representation is not available to give evidence about an asserted fact. That requirement is clearly met in this case, as Mr Reid is deceased. Subsection 65(2)(b) establishes that 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 was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication.
The prosecution submits that the representations made by the deceased to Ms Webb via telephone during the November 2016 incident were made ‘when or shortly after’ the asserted fact occurred. That is, that when the deceased telephoned his mother before 9 am, the incident which had found him being chased down the street by the accused holding a knife at either 2 or 3 o’clock in the morning was, at the very least, continuing. That is because, according to this evidence, the deceased was still locked out of the house without his keys and wallet. In any event, it is argued that a period of (at most) six hours falls within the definition of ‘shortly after’. The prosecution submits further that the circumstances of the occurrence, including the short time delay and the fact that the telephone call was made reverse charge, of themselves make it unlikely that the representation was a fabrication.
On the other hand, the accused submits that the representation does not meet the twin conditions of s 65(2)(b). Particularly, it is argued that the prosecution are unable to show that the representation was made ‘when or shortly after’ the November 2016 incident, as it was made neither spontaneously during, or under the proximate pressure of, the occurrence of the asserted fact. In this regard, the accused submits that the s 65(2)(b) exception has its roots in the common law res gestae exception to the hearsay rule[13] and relies upon DPP v Asling.[14] In that case Kaye JA quoted the joint judgment of Whitlam, Madgwick and Weinberg JJ in Williams v The Queen:[15]
It would be a mistake, in determining whether a statement has been made ‘shortly after’, to over emphasise such matters as whether the events in question were ‘fresh’ in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in 65(2)(b) is not based only on the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (‘when’) or under the proximate pressure of (‘shortly after’) the occurrence of the asserted fact …
[13]R v Bond (Ruling No 4) [2011] VSC 536, [7].
[14]DPP v Asling(Ruling No 2) [2017] VSC 38, [21]-[22].
[15](2000) 118 A Crim R 490, [48].
In R v Mankotia,[16] Sperling J held:
The phrase ‘shortly after’ is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to be taken into account but – as in the case of normative judgments generally – it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase ‘shortly after’ must be the actual time that has elapsed and whether that fits the ordinary usage of the expression ‘shortly after’ in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a break on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind.
[16][1998] NSWSC 295, [5]-[6].
In my view, the circumstances of the November 2016 incident indicate that the representation made by the deceased to his mother before 9 am satisfy both limbs of the s 65(2)(b) exception. Either the event was continuing, as the deceased was still barred from his house, which would make the representation contemporaneous with the asserted fact, or the representation was made no more than six hours after the asserted fact, if the asserted fact is limited to the incident of the deceased being chased by the accused down the street. In the circumstances, that is, at least, ‘shortly after’. In either case, the memory of the event is likely to have been operating on the mind of the deceased.
Further, the circumstances of the event make it extremely unlikely that the representation was a fabrication. The phone call was made reverse charge and at a relatively early hour of the morning by an adult man to his mother.
Accordingly, I am of the view that evidence of the representations made by the deceased regarding the November 2016 incident are admissible pursuant to s 65(2)(b) of the Act.
Given this, it is strictly unnecessary to consider whether the impugned evidence of the November 2016 incident is also admissible pursuant to s. 66A of the Act. However the representation as to the November 2016 incident clearly falls within the definition of being a contemporaneous representation about the deceased’s feelings, knowledge or state of mind.
Accordingly, evidence of the November 2016 incident is also admissible pursuant to section 66A of the Act.
Conclusion
With respect to the impugned evidence detailed at paragraph [4] above:
(a)the evidence in category (a) is excluded under s 137 of the Act;
(b)the evidence in category (b) is excluded under s 56(2) of the Act; and
(c)the prosecution is permitted to lead the evidence in category (c).
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