R v Toki (No 3)

[2000] NSWSC 999

Reported Decision: (2000) 116 A Crim R 536

New South Wales

Supreme Court

CITATION:	R v Toki (No. 3) [2000] NSWSC 999
FILE NUMBER(S):	SC 70001/2000
HEARING DATE(S):	20 October 2000
JUDGMENT DATE:	25 October 2000
PARTIES :	R v Martin Marino Toki
JUDGMENT OF:	Howie J

COUNSEL :	R.F Greenwood QC (Accused) C. Maxwell QC (Crown)
SOLICITORS:	Ross Hill and Associates (Accused) SE O'Connor (Crown)
CATCHWORDS:	Evidence - admissibility and relevance - relationship evidence - hearsay evidence
LEGISLATION CITED:	Evidence Act 1995 - ss 65, 72, 97, 101, 135, 136, 137
CASES CITED:	Harriman v The Queen (1989) 167 CLR 590 Wilson v the Queen (1970) 123 CLR 334 S v The Queen (1989) 186 CLR 266 R v Frawley (1993) 69 A Crim R 208 R v Serratorre (1999) 48 NSWLR 101 Conway v R (2000) 172 ALR 185 Pfennig v The Queen (1995) 182 CLR 461 R v Ritter (unreported, CCA(NSW), 31/8/95) R v Anderson (2000) 111 A Crim R 19 R v Blick [2000] NSWCCA 61 R v Locke (1997) 91 A Crim R 356 R v Vollmer [1996] 1 VR 95 R v Hissey (1973) 6 SASR 280 R v Matthews (1990) 58 SASR 19 R v Frawley (1990) 69 A Crim R 208 Shaw v The Queen (1952) 85 CLR 365 R v Lockyer (1996) 89 A Crim R 453 R v NJF (unreported, CCA(NSW), 5/6/97) Gipp v The Queen (1998) 194 CLR 106 Ordukaya v Hicks [2000] NSWCA 180 R v Singh-Bal (1997) 92 A Crim R 397 R v Dean (unreported, 12/3/97) R v Mankotia [1998] NSWSC 295 R v Polkinghorne [1999] NSWSC 704
DECISION:	Evidence admitted

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HOWIE J

WEDNESDAY 25 OCTOBER 2000

70001/2000 - REGINA v MARTIN MARINO TOKI (NO. 3)

JUDGMENT (on admissibility of evidence)

Background

1    HIS HONOUR: This is an application that the Crown be permitted to call evidence in its case which touches upon the nature of the association between the accused and the deceased over a period of more than two years leading up to the incidents which gives rise to the charge of murder against the accused. The evidence has been objected to in its entirety by Mr Greenwood QC on behalf of the accused.

2    In essence the Crown’s case is that on 17 January 1999 the accused delivered a severe beating to the deceased, his de facto partner, and as a result inflicted upon her multiple injuries, one of which caused her death. The Crown’s case is a circumstantial one. It is based upon (a) forensic evidence obtained from the flat where the accused and the deceased lived and where she was found grievously injured, (b) the nature and extent of the injuries suffered by the deceased; and (c) evidence from witnesses as to what they say occurred in the days immediately preceding the death of the deceased.

3    The accused has made statements to police officers and others, both before and after his arrest, asserting that he did not cause the injuries. In those statements he suggested that the deceased had suffered a fit as a result of taking some illicit substance the evening before she was injured. In particular he states that the deceased hit her head when he was showering with her in an attempt to assist her to recover from the effects of the substance she had consumed.

4    The defence case at this stage of the trial appears to raise the possibility that the injury, which caused the death of the deceased, was inflicted by her own involuntary acts at the flat while under the effects of the fit. Further, there is a suggestion that a person other than the accused may have inflicted some of the injuries from which the deceased was found to be suffering when she was taken to hospital. In cross-examination of two Crown witnesses, Mr Greenwood explored whether some injuries to the deceased may have been inflicted by one of those persons.

5    The evidence, which the Crown wishes to call, substantially involves accounts by a number of persons as to injuries suffered by the deceased at the hands of the accused during the entire course of their relationship with one another. The evidence consists of statements made by acquaintances, friends and workmates of the deceased, who say they saw bruising and other injuries upon the face and body of the deceased at various times between 1996 and December 1998. The evidence also includes statements made by the deceased as to how those injuries were inflicted upon her. Some of the statements attribute the injuries to assaults by the accused while others indicate that the injuries were not caused by him. There is evidence of actual violence or threats of violence by the accused to the deceased. There is also evidence of statements made by the deceased that she feared the accused.

6    The Crown submits that generally speaking the evidence is admissible in two ways: (a) as evidence of the relationship which existed between the accused and the deceased at the time leading up to her death and (b) as evidence of a tendency of the accused to act violently to the deceased when he was angry.

7 Although Mr Greenwood accepts that the evidence is generally relevant to the issues which will be before the jury, he submits that it ought to be rejected because its probative value is overwhelmed by the prejudice which would arise if it were admitted. It is argued that the evidence should be rejected as inadmissible either by operation of ss 97 and 101 of the Evidence Act, which sections are concerned with the admissibility of tendency evidence, or under the general provision contained in s 137 of the Act.

The Crown case

8    There is evidence before the jury that at about 4 pm on 16 January 1999 the accused and the deceased met Mr Craft and Ms Ferry at an hotel in Surry Hills. After sharing a couple of rounds of drinks, it was agreed between them that they would adjourn to the home of Mr Craft and Ms Ferry so that the men could watch wrestling on television and the two women could chat. They purchased a carton of beer on the way from the hotel to the house in Crown Street.

9    The four of them sat in the lounge room of the premises consuming beer and talking in front of the television. At about 7 pm, the accused suddenly stood up from where he was sitting and left the premises. Ms Ferry says that, just before he walked out of the room, the accused turned to the two women, who were sitting together on a lounge, and said, "Don’t talk about my relationship”.

10    The deceased remained with Ms Ferry and Mr Craft. Some time later she asked if she could make a phone call and was directed to the bedroom. Ms Ferry went into the room a short time later and found the deceased in a distressed state. During the conversation that followed, the deceased said that she wanted a safe house and did not wish to go home. The deceased and the accused were living together in a flat about 300 metres away.

11    The deceased and Ms Ferry continued to talk and drink beer in the bedroom until eventually the deceased fell asleep. Some time later Ms Ferry climbed into the bed beside the deceased to go to sleep and still later Mr Craft, who was very intoxicated, got into the bed beside Ms Ferry. He also fell asleep.

12    In the early hours of Sunday, 17 January, Mr Craft and Ms Ferry were woken by the sound of smashing glass. Ms Ferry simply went back to sleep but Mr Craft got out of bed to investigate. He saw that a panel of glass in the front door of the premises had been broken. However, not seeing anybody in the vicinity, he went back to bed and fell asleep again.

13    At about 5 am the occupants of the room were again woken, this time by the light in the bedroom being switched on. The accused was standing at the foot of the bed. He appeared agitated. He told the deceased to get up as they were leaving. The deceased immediately got out of bed and, as she was naked at the time, put on her clothes. The accused and the deceased then left the premises. The evidence from Ms Ferry and Mr Craft is that the deceased had not been injured in anyway while at their home.

14    It was the accused who had smashed the window of the door, and as a result he had cut the thumb of one of his hands. It was bleeding profusely. The accused left a trail of blood, which police could later follow leading through the streets between the home of Ms Ferry and Mr Craft in Crown Street and the flat in Phelps Street where the accused and the deceased were living.

15    An ambulance was summoned by the accused to the flat in Phelps Street shortly after midday. When ambulance officers arrived, the deceased was found with multiple injuries and in an unconscious state. She was transferred to hospital.

16    Police arrived at the scene shortly thereafter. The accused was found in the flat in a stressed and confused state. He was asked what had happened and he replied, “My girl had a fit and the ambulance has taken her away”. The accused appeared to be suffering from a severe pain in his abdomen. When asked what he had taken, the accused told the police officer that he had been given what he believed was the drug ecstasy the evening before.

17    While at the flat the accused gave an account to a police officer of what had occurred prior to the deceased being taken away in the ambulance. He said that the evening before he and the deceased had been at a house up the road. One of the occupants of those premises had given him a tablet crushed and mixed with white powder. Later an argument arose about drugs so the accused went home but the deceased remained. The accused said he went back to the premises the next morning to get the deceased. He told the police officer that he had to break the glass in the door to gain entry, as the occupants would not let him in. He went inside the house and brought the deceased home.

18    The accused said the deceased was all right when they reached Phelps Street but later she “went all crazy”. He said she had started to come down from the drug and was in a lot of pain. The accused was also feeling unwell at this time and they both got into the shower. The accused said that the deceased had a fit in the shower, fell on top of him and hit her head.

19    Because the accused appeared to be in pain and physically unwell, he was taken by ambulance officers to St Vincent’s Hospital for an examination. When he was discharged from the hospital some hours later, he was immediately arrested and taken to Surry Hills police station. In a recorded interview he gave an account of the events leading up to the time the deceased was injured. This account was similar to that which he had given the police officer before his arrest but it contained considerably more detail. He denied that he had assaulted the deceased on the day she was injured.

20    The report of the autopsy carried out on the body of the deceased states that she suffered extensive bruising over her body and limbs, including internal bruising, and many broken ribs. The bruises were both days old and more recent. The pattern of some of the bruises indicated that they had been caused by a rod-like implement. The most likely cause of death was a head injury.

21    During evidence given at the committal proceeding, the medical practitioner who performed the autopsy stated that he could not conceive how the multiplicity of injuries, the multiplicity of rib fractures and intra abdominal injuries could be related to a single fall.

22    It is against that factual background that the present application has to be considered. On the evidence so far and in light of the conduct of the trial by Mr Greenwood, it appears that the fundamental issue which will be before the jury is whether the Crown has proved beyond reasonable doubt that the accused caused the injury which resulted in the death of the deceased or whether there is a reasonable possibility that the injury occurred as a result of the deceased accidentally hitting her head when reacting to some substance she had taken the night before.

Evidence of relationship

23    Where the accused and another person have been living together over a lengthy period of time before the occurrence of the acts which give rise to the charge before the court, the relationship between the parties will be admissible if it is relevant to the facts in issue in the trial; Harriman v The Queen (1989) 167 CLR 590 at 630. This was so under the common law; Wilson v The Queen (1970) 123 CLR 334; S v The Queen (1989) 186 CLR 266; R v Frawley (1993) 69 A Crim R 208. It remains so under the provisions of the Evidence Act 1995: R v Serratorre (1999) 48 NSWLR 101; Conway v R (2000) 172 ALR 185. The rules that govern the admission of the evidence will depend upon the purpose for which the evidence is to be admitted.

24    Evidence of the relationship between the accused and another person can be admissible in order to put the facts giving rise to the charge into a proper context so that the jury can understand the acts of the accused relied upon by the Crown against the background of the circumstances that existed at the relevant time: Wilson v The Queen at 399, 344. The evidence is admitted not simply because it describes the relationship of the parties, but because statements or acts of the parties occurring within the relationship are relevant to the issues before the jury.

25 When used in this way, relationship evidence is not being adduced or admitted to prove any propensity that the accused may have had to act in a particular way. Its admissibility is, therefore, not subject to the limitations imposed on propensity evidence by the Evidence Act or the common law: Conway at [101]. In particular, the decision of the High Court in Pfennig v The Queen (1995) 182 CLR 461 does not apply and the evidence does not have to pass the test for the admissibility of propensity evidence laid down in that case: R v Ritter (unreported, CCA(NSW), 31 August 1995) at 7; Anderson (2000) 111 A Crim R 19 at 34; Conway at [102].

26 The admissibility of the evidence is, however, subject to the general provisions found in ss 135 and 137 of the Evidence Act. In criminal proceedings, if the unfair prejudice arising from the admission of the evidence would outweigh its probative value, it must be rejected: R v Blick [2000] NSWCCA 61 at [20].

27 The potentiality for prejudice inherent in such evidence may be minimised by limiting the use that is to be made of the evidence by the jury under s 136 of the Act and by appropriate directions to the jury as to the relevance of the evidence and the manner in which it is to be used by them supported by warnings about the misuse of the evidence: Locke (1997) 91 A Crim R 356 at 365.

28    Relationship evidence has traditionally been admitted as relevant to the state of mind of the offender including the intention of the accused at the time of the commission of the act causing death, the existence of a motive to kill the deceased, and whether the accused may have been acting under self defence or provocation: R v Vollmer [1996] 1 VR 95; Anderson at 31. But this type of evidence is also admissible to prove the identity of the offender: R v Serratore at [23], R v Hissey (1973) 6 SASR 280 at 288-289, and whether the act causing death was a result of an accident or misadventure: Wilson v The Queen, above.

29    The relationship between the accused and the other person can be proved in a number of ways. It can be shown by statements and acts of the accused, by direct evidence of other witnesses and by circumstantial evidence. It can also be proved by statements made by the other person where that person’s opinion of the relationship is relevant and the statements are otherwise admissible: R v Matthews (1990) 58 SASR 19; Frawley (1990) 69 A Crim R 208; R v Serratore, above at 107-108.

30    Where the relationship between the accused and the other person includes the infliction of injuries upon the other person by the accused, this fact can be proved by direct evidence of witnesses or, where admissible, statements made by the other person. It can also be proved by circumstantial evidence which raises a presumptive inference that the accused was the author of the injuries: R v Hissey at 289; Shaw v The Queen (1952) 85 CLR 365 at 377.

Evidence of tendency

31 The relationship between the accused and another person may be admissible, where relevant, to prove that the accused had a tendency to act in a particular way, either generally or with that particular person. But it can not be admitted for this purpose where the evidence would not have “significant probative value”: s 97 of the Act. “Significant” for this purpose means “important” or “of consequence”: Lockyer (1996) 89 A Crim R 453.

32 Further, evidence, which may otherwise be admissible as tendency evidence, cannot be used against an accused person unless the probative value of the evidence substantially outweighs any prejudicial effect that it may have: s 101 of the Evidence Act. It has been held that the test to be applied under s 101 is similar to that applied under the common law in Pfennig v The Queen: Locke, at 363-364; R v NJF (unreported CCA(NSW, 5 June 1997). The admissibility of the evidence is also subject to ss 135 and 137 of the Act.

33    Where the evidence is to be relied upon to prove a tendency on the part of the accused, the acts relied upon to prove the tendency must be sufficiently particularized and must be proved beyond reasonable doubt: Gipp v The Queen, per McHugh and Hayne JJ, at [76].

The disputed evidence

34    The Crown wishes to call a number of witness to give evidence as to what it says was the relationship between the accused and the deceased from the time they commenced their de facto relationship in 1996 until shortly before the death of the deceased. The following is the general history that the witnesses would give if this evidence were admitted.

35    In January 1995 the deceased ended a de facto relationship with a man whom she had known from 1980, Adrian Cartwright. After 1995 they no longer lived together, but they remained friends.

36    In early 1996 a mutual friend of Mr Cartwright and the deceased, Geoffrey Wallace, moved in to share a house with the deceased at 42 Hutchinson Street, Surry Hills. The deceased was the lessee of those premises. About 9 months later the accused came to reside in that house and commenced a close, intimate relationship with the deceased.

37    Mr Wallace states that not long after the accused moved into those premises the deceased and the accused started to argue. At about this time Mr Wallace noticed that the deceased was on occasions suffering injuries including black eyes, split lips and cuts and bruises to her arms. Mr Wallace says the deceased attempted to conceal these injuries by make up and wearing dark glasses. On occasions Mr Wallace asked the deceased how she received these injuries and she told him that they occurred either accidentally or they were inflicted upon her by her ex husband who was a former member of the IRA.

38    About this time another friend of the deceased, Ms Barrett, met the accused at 42 Hutchinson Street. On one occasion she saw the deceased at the Cricketers Arms Hotel. Despite being inside the hotel, the deceased was wearing dark glasses. Ms Barrett noticed what she believed were burn marks on the deceased’s face.

39    From 1992 until 1996 the deceased worked with a company known as Quadrant Research Services. Mr Korbel was the Managing Director of that company. He states that on occasions, during the second half of 1996 up until the deceased left the company in December of that year, he saw the deceased with black eyes, broken bones and bruising to the face. Whenever she was asked about the injuries, she said they occurred when she had fallen over.

40    In February 1997 Mr Wallace was asked by the deceased to take over the lease on the premises at Hutchinson Street because she said that she was going to the Cook Islands with the accused. Mr Wallace agreed to do so. However, the day after the deceased had left to go overseas she returned to the premises without the accused. Mr Wallace understood that something had occurred at the airport to interfere with her plans.

41    On 14 February 1997 Ms Barrett answered a knock on the door and saw the deceased. She was upset and dishevelled. The deceased told Ms Barrett “These fucking git’s got me at the airport took her (sic) out to Botany, took her (sic) stuff and beat her (sic) up”. Later that day Ms Barrett noticed that the deceased had red marks on her back.

42    After this time the accused was absent from the premises at Hutchinson Street for about 3 months and Mr Wallace and the deceased lived there alone. Mr Wallace states that, while the accused was absent, he never noticed any fresh injuries to the deceased. Ms Barrett states that during this period, she did not see any signs of injuries upon the deceased nor was she wearing dark glasses to the same extent as she had before the accused left the premises.

43    Eventually the accused moved back into the Hutchinson Street flat. Mr Wallace left to reside elsewhere although he continued to rent the room in those premises from the deceased and would on occasions stay there. He states that, after the return of the accused, he noticed that the deceased was again bearing signs of fresh injuries and recommenced wearing make up and dark glasses. When questioned by Mr Wallace about the cause of the injuries, the deceased gave him explanations similar to those she had given him previously.

44    In August 1997 Mr Wallace moved out of the premises at Hutchinson Street permanently but remained an acquaintance of the deceased. He states that on occasions thereafter he noticed that the deceased would be bearing fresh injuries of a similar nature to those which he had seen when he was either living or staying at Hutchinson Street.

45    Ms Barrett states that on one occasion after the accused had returned to Hutchinson Street, she witnessed him pushing the deceased across the room and out of the front door. The deceased then fell into the street. She recalls the accused saying, “There I have done it in front of Tracey. Are you happy now?”

46    Ms Barrett also recalls that in July 1997 on the night before she left to go overseas she could hear furniture being smashed in the room occupied by the accused and the deceased. Although on occasions the deceased told her that the accused had assaulted her, on other occasions she said that “gits” came to her home and hit her.

47    About the 2nd or 3rd of August 1997 Ms Stevens, a friend of the deceased, received a telephone call from her. She sounded distressed and wanted to come to Ms Stevens’ home to make a phone call where it was safe to do so.

48    The deceased arrived at Ms Stevens’ premises bearing injuries. She appeared to Ms Stevens to have fresh cigarette burns and cuts on her face. She also had what appeared to be blood on her dress. The deceased told Ms Stevens that the accused had inflicted these injuries upon her the night before. She said that she was looking for a safe house and she believed that the accused would not immediately look for her at Ms Stevens’ home.

49    The deceased stayed with Ms Stevens until the next afternoon but Ms Stevens was unwilling that the deceased stay longer. During the period she was at her home, Ms Stevens noticed that the deceased had multiple bruising all over her body.

50    On 27 August 1997 Mr Cartwright received a phone call from the deceased who asked him if he would take her to hospital. Mr Cartwright picked her up from her place of employment. He noticed that the deceased had multiple injuries including a swollen ear and bruising to her head and arms. The deceased told Mr Cartwright that he accused had “battered” her. She also complained that he had put her on a chair with a rope around her neck and tried to hang her.

51    Mr Cartwright took the deceased to Royal Prince Alfred Hospital where she was examined by Dr Wavumono. The deceased told the doctor that her partner had assaulted her the previous night. She said that she had been hit with an iron bar and with a fist around the head, chest and legs. She also said that she was strangled and lost consciousness. The doctor found swelling and tenderness to her scalp, bruised and swollen ears, bruising throughout her body including her upper body, her legs and thigh. An x-ray revealed that the deceased had three fractured ribs.

52    In September 1997 the deceased rang her sister in Manchester, England, and told her that she was in a refuge. She explained that she had to get away from the accused because he was beating her up. A few days later the deceased arrived in Manchester and told her sister that the accused was an extremely violent man and that she was terrified of him. Three or four days after she arrived in the United Kingdom, however, the deceased decided to return to live with the accused in Australia.

53    On 5 March 1998 the deceased attended at a women’s refuge. She was extremely distressed and crying and she appeared to be in pain. The deceased indicated to a worker at the refuge that she had suffered bruising to her arm, back, stomach and sides and was complaining that her head was sore. She said that she had been punched with a closed fist to her head repeatedly. The deceased told the worker that she had a fight with her de facto the night before. The worker took notes of the conversation and her observations of the deceased. The deceased remained at the refuge until 10 March when she left saying that she intended to return to England.

54    Some time in March the deceased again rang her sister and told her that she intended to leave Sydney immediately because the accused had been violent to her again. She said that she was frightened for her life and was staying at a friend’s place. The deceased’s family purchased an airline ticket and the deceased travelled to Manchester. The deceased told her sister that she continued to fear the accused. However, shortly after her arrival in England, the deceased again returned to Australia and the accused.

55    In June 1998 the deceased rang a friend, Andrew Fitzgerald, and asked if she could stay at his home. Mr Fitzgerald agreed that she could. When the deceased arrived a short time later, Mr Fitzgerald noticed that she was very upset and had a cut at the top of her eye and bruising around her face. Mr Fitzgerald asked her what was happening and she replied, “Marty beat me up”. The deceased stayed overnight at Mr Fitzgerald’s place and left the next morning. A couple of months after this the deceased again came to Mr Fitzgerald’s place and on this occasion he noticed that she had bruises around her neck. Again she stayed the night.

56    On 18 June the deceased moved into rented accommodation in Paddington. The caretaker of the set of units was Mr Owens. The deceased told him that she was having trouble with a boyfriend. About a month after she moved in, Mr Owens saw her in the company of a male pacific islander. He asked her whether this was the boyfriend with whom she was having trouble. The deceased said it was not and introduced the person as “Marty”. Over the next weeks he saw them together at the units.

57    On 6 August the deceased and the accused moved into a different unit in the block. About a week later, Mr Owens heard the accused shouting aggressively in the unit. He heard him say, “In my village the women do exactly what the men tell them to do”. He then heard what sounded to him like an open handed slap and a female yelp. A short time later the accused and the deceased left the unit, and Mr Owen saw the deceased holding the side of her face.

58    During the weeks before they vacated the unit on 3 October, Mr Owens heard the deceased and the accused arguing. He heard what sounded to him like a person being thrown around the room and blows to the body. On one occasion he saw the deceased with a black eye and a cut under her right eyebrow. Mr Owens advised the deceased to go to a refuge but she refused.

59    Ms Dingle, a workmate of the deceased, noted that on four occasions between July and September 1998 the deceased was bearing injuries. On one occasion, when she saw the deceased at work, Ms Dingle noted that she had bruises on her face and one of her eyes was blood shot and drooping.

60    A friend of the deceased, Eleanor Haughey, states that in late October 1998 the deceased rang and asked her to pick her up from work. The deceased explained that her boyfriend had been beating her up, had come to her place of work and that she felt terrorised. Ms Haughey did as she was asked and saw that the deceased was bearing both old and fresh injuries. She noticed that the deceased had bruising all over her body and her ear was bleeding. The deceased told Ms Haughey that the injuries were inflicted by the accused.

61    In September or October 1998 Ms Shine recommenced her acquaintance with the deceased when they bumped into one another at the place where the deceased was then working. A week after they met the deceased rang Ms Shine and asked if she could stay a few nights. Ms Shine agreed and, when the deceased arrived at her home, Ms Shine noticed that she had a bruise to her face. Later she observed that the deceased had bruises to her stomach, over her arms and on her legs. The deceased told Ms Shine that the accused had beaten her up.

62    While the deceased was staying with Ms Shine, the accused came to visit her. Ms Shine noticed that the deceased and the accused were affectionate with one another. The deceased returned to live with the accused. Some time later the deceased rang Ms Shine and asked if she could leave her bags with her as she was leaving her home. When the deceased arrived, Ms Shine noticed that she had what appeared to be both old and recent injuries to her body. The deceased said to her “ Look he’s done it to me again”.

63    In the beginning of 1998 the deceased commenced work with a firm called Surveytalk Pty Ltd. In August or September 1998, after a short period of absence from her employment, the deceased took up a casual contracted position with that firm. About one month later the deceased came to work bearing scratches over her neck and bruising to her jaw and upper arms. Ms Kraut, her employer, spoke to her about these injuries and suggested she should call the police. The deceased told Ms Kraut, “I would never call the police, I don’t believe in that. I know it is a bad situation, but I am trying to deal with it”.

64    About a month later in November, the deceased arrived at work with heavy bruising around her eyes and to the side of her face. When asked about the injuries, she said that she had fallen against a coffee table. Later she told Ms Kraut that the accused pushed her and she fell against the table. She said that it was partly her fault and she was going to seek counselling.

65    In late November or early December the deceased arrived at work completely covered in clothing with only her face revealed. She had extensive bruising to the whole of her face. The deceased told Ms Kraut she had been involved in a car accident.

66    About two weeks later the accused came to the office of Surveytalk. He appeared to be heavily intoxicated and was very aggressive. The accused stood in front of the deceased who was sitting at her desk and said, “Who is going to help you here Pauline?” As he was talking to her, the accused continually spat on the deceased. After the accused left the premises, police arrived. When the police officer asked her whether her boyfriend had ever hit her, the deceased denied that he had. She told the police officer that the accused’s name was John Aakwaba.

67    Between October and Christmas 1998 Ms Haughey saw the deceased on four occasions at Ms Haughy’s home. On each occasion the deceased told her that she was escaping from the accused. On the last occasion, 12 December 1998, Ms Haughey arrived home at about 2am to find the deceased waiting on her doorstep.

68    After the deceased had been taken to hospital on 17 January 1999, the police located in the flat at Phelps Street a number of letters written by the deceased to the accused. They contain statements by the deceased to the effect that although she loved the accused and wished to live with him, she was terrified of his temper. In one of those letters she acknowledges that the accused is not all to blame but that he is for “the physical”.

The evidence is admissible to prove the relationship

69    I have already indicated that Mr Greenwood conceded that this evidence was relevant to the issues which would be before the jury. In my view, that concession was well founded. It is evidence against which the jury can consider the possibility that the multiple injuries suffered by the deceased were caused by an accident or by some person other than the accused.

70    The evidence is generally admissible because it is relevant to a consideration by the jury of what happened in the premises at Crown Street on 16 and 17 January 1999 and why the accused and the deceased acted as they did. The relationship evidence reveals that, although she loved the accused, the deceased was frightened of his temper. The evidence reveals that her fears were well-founded. It also shows that on occasions she would seek safety with other persons because she feared that the accused would inflict injuries upon her.

71    In his interview with police the accused said that he left the premises in Crown Street after an argument with the occupants. He said the deceased remained because she was under the influence of some substance she had taken and that he said to her, “No worries, I’ll come back for you” (Qu 40). He told the police that he was not upset when he found her in bed naked the next morning with Ms Ferry and Mr Craft (Qu 220). He also said that as he took her home he told her that he loved her (Qu 43). The effect of the accused’s version contained in the interview is that he was completely unconcerned about what happened at the Crown Street premises apart from the fact that the deceased and himself were suffering the deleterious effects of the substance given to them at those premises.

72    The evidence which the Crown seeks to lead is relevant to the jury’s assessment of this version in the context of the relationship as they find it to be. The evidence may permit the jury more easily to understand the following matters: why the accused left the premises in Crown Street when he did; why the deceased remained at the premises after the accused left; why the deceased stayed the night; why the accused returned to those premises and why the deceased left with him. All these matters are obviously important in light of the fact that, within eight hours after leaving the Crown Street premises with the accused, the deceased was found to have suffered multiple and life-threatening injuries.

The evidence is inadmissible as tendency evidence

73 Although the Crown sought to rely upon the evidence as proving a tendency on the part of the accused to assault the deceased when he was angry, I do not believe that it should be admitted on that basis. Although it might be inferred that the accused inflicted injuries upon the complainant throughout their relationship when he was angry, the evidence is very scant as to the actual circumstances surrounding the infliction of injuries upon the deceased. There is no evidence as to the circumstances in which the complainant came to be injured on 17 January. The evidence lacks the significant probative value necessary before it can be admitted under s 97. Nor would the evidence pass through the test for admissibility under s 101 as that section has been interpreted.

74    Further, I believe that if the evidence, or some part of it, were admitted as tendency evidence, there would be a real risk of confusion arising on the part of the jury as to the purpose for which any particular part of this evidence was admitted and the use which the jury could make of it.

75    Not all of the evidence would be admissible as tendency evidence. The jury would have to be told that some of this evidence was admissible as evidence of relationship but that it could not be used by them as evidence of tendency. The jury would be directed that evidence of relationship would be part of the circumstantial case and would not need to be proved beyond reasonable doubt. The jury would have to be further directed that some of the evidence could also be used as evidence of a tendency on the part of the accused to assault the deceased, but only if the jury were satisfied of this evidence beyond reasonable doubt.

76 I accept that normally it would be expected that a jury would be capable of making a distinction between the purpose and use of different types of evidence placed before them and could be relied upon to strictly apply directions in this regard during the course of their deliberations. But in light of the extent and nature of the relationship evidence which the Crown seeks to lead before the jury in this case, I believe that the admission of part of it as tendency evidence would overly complicate the matter and lead to the possibility that the jury may misuse some of the evidence. The evidence, therefore, should also be rejected as tendency evidence under the discretion in s 135(b) of the Act.

The evidence is not rendered inadmissible by s 137

77 Mr Greenwood submitted that, although the evidence was admissible as relationship evidence to give context to the facts and circumstances surrounding the injuries suffered by the deceased on 17 January 1999, I should reject the evidence under s 137 of the Act. In effect he submits that the evidence is overly prejudicial to the accused.

78    There is always a risk that, when such evidence as the Crown seeks to adduce in this case is placed before the jury, it may be misused by them either to raise the general disposition of the accused to acts of violence or to lead them on an improper line of reasoning to find the accused guilty of the offence charged. The risk of such misuse will in some cases be enough to require that the evidence be rejected where its relevance or weight is not great in light of the issues before the jury. Generally the likelihood of misuse will be curtailed, if not eliminated, by appropriate directions to the jury

79 But Mr Greenwood in his submissions recognised the strength of this evidence to the issues which are, or will be, before the jury in this case and, therefore, sought to argue that its corresponding prejudice was greater in this case then in other cases where such evidence has been placed before the jury. But this argument confuses the prejudice caused to the accused’s defence by the probative value of the evidence with unfair prejudice arising from the admission of the evidence. It is only the latter type of prejudice that both ss 135(a) and 137 of the Act are concerned with: Ordukaya v Hicks [2000] NSWCA 180; Singh-Bal (1997) 92 A Crim R 397. I do not believe that the evidence should be rejected under s 137 of the Act.

Limitations upon admissibility of the evidence

80    In order to reduce the potentiality for prejudice to the accused, there should be some limit placed upon the evidence of what the deceased has said about the conduct of the accused toward her and the description of the injuries suffered by the deceased on other occasions. The infliction of injuries upon the deceased is important to an understanding of the relationship and the deceased’s conduct on the days before her death. But some of it is overly prejudicial without adding greatly to the jury’s appreciation of the nature of the relationship or the determination of the issues before them.

81    For example, the evidence of the complaint made by the deceased to Mr Cartwright and Dr Wavumono that the accused attempted to strangle her should not be led in evidence. Nor should the doctor’s findings as to the extent of her injuries or that the deceased complained that she had been hit with an iron bar. The fact that the deceased had broken ribs on that occasion is overly prejudicial in light of the fact that she had broken ribs when examined on 17 January 1999. The jury should not be put into the position where they might compare the similarity of injuries seen in August 1997, or on any other occasion, with those found in the autopsy. The Crown is alleging that the accused used a large piece of wood to cause injuries to the deceased on the occasion leading to her death. Therefore, the suggestion that the accused used a weapon on another occasion is overly prejudicial and largely irrelevant to the purpose for which the evidence is being admitted.

82    During argument I made it clear that I would not admit statements made by the accused which might be interpreted as a threat to kill the deceased, but which are really equivocal at best.

Statements made by the deceased

83 The evidence contains statements made by the deceased about her fear of the accused and his temper. That evidence is relevant in this case as part of the explanation for the conduct of the deceased in remaining at the premises in Crown Street and complying with the accused’s demand that she accompany him from the premises the next morning. In my opinion these statements are admissible under s 72 of the Act. Mr Greenwood did not suggest otherwise.

84    Objection is taken, however, to statements made by the deceased that the accused was assaulting her. There are general statements to this effect and also statements that relate to particular injuries.

85    It is clear that there is evidence that the injuries suffered by the deceased throughout this period of time were caused by the accused. Some of this evidence is of a circumstantial nature. For example, there is the evidence of Ms Barrett and Mr Wallace that the deceased showed signs of being injured after the accused moved into Hutchinson Street but not when he was absent for a period of about three months. There is also the evidence from persons who heard sounds of violence in premises being occupied by the two of them and immediately thereafter seeing the deceased with injuries. There is also direct evidence that the accused was violent to the deceased. Ms Barrett sees the accused assaulting the deceased and hears the accused make a statement to her which could be interpreted as an admission that he had used violence to her in the past.

86 The Crown also wishes to rely upon statements made by the deceased that the accused inflicted injuries upon her. The Crown relies upon these statements as proof of the fact asserted by the deceased. Objection was raised to these statements on the basis that they were inadmissible hearsay not falling within s 65 of the Act. Although the statements are made in reference to facts antecedent to the death of the deceased and, therefore, do not relate to the crime itself, I do not believe that they are inadmissible on that account; cf Dunford J in R v Dean (unreported, 12 March 1997) but see R v Serratore, above, at [27].

87 Section 65(2)(b) of the Act provides 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 made it unlikely that the representation is a fabrication.

88    Whether a representation is made “shortly after” an asserted fact occurred depends upon the nature of the fact being asserted and the circumstances in which the representation is made. It has been held that the primary consideration will be whether the period of time that has elapsed between the two events can be said to fit within the ordinary usage of the expression “shortly after”: R v Mankotia [1998] NSWSC 295; R v Polkinghorne [1999] NSWSC704; Conway v R at [135]. The intention of the provision is to require that the representation be made, if not at the same time as the asserted fact, on an occasion when the asserted fact is still fresh in the memory of the person making the representation.

89    In relation to the requirement that the representation must have been made in circumstances that “make it unlikely that the representation is a fabrication”, it has been held that the circumstances to be regarded are those that pertain at the time the statement is made, its factual setting at the time it was made: R v Mankotia at 10. The section is concerned with the unlikelihood that the representation has been concocted.

90    There are statements made by the deceased to other persons about particular injuries. Some of these statements occur when the deceased was seeking a place of refuge. On those occasions she was seen to be distressed and bearing fresh injuries. Evidence of statements made by her on those occasions are, in my view, sufficiently connected to the occurrence of the injuries that they meet the test required in respect of the temporal connection between the statement attributing the injuries to the accused and the infliction of the injuries.

91    The statements made on these occasions also seem to me to be made in circumstances in which it is unlikely that her assertion that the accused caused the injuries was a fabrication. There was no reason at all for the deceased on these occasions to lie about the fact that it was the accused who caused the injuries. Each of these statements is made as part of an explanation for her request for a place to stay. It is unlikely that in such a situation she would have falsely blamed the accused for her state.

92 Similarly, in my view the evidence of what the deceased said both to Mr Cartwright and the doctor about the injuries she suffered on 26 August 1997 are admissible under s 65(2)(b). In many situations a representation which is made the day after the occurrence of the asserted fact will not be regarded as having been made “shortly after” the asserted fact. But, in the case of a person who has suffered serious injuries on one day and who is seeking medical treatment the next day, there is a sufficient temporal connection between the two events so that it can be said that the request for medical assistance occurred shortly after the infliction of the injuries.

93    I am also of the opinion that the circumstances in which the deceased attributed those injuries to the accused make it unlikely that the assertion was a fabrication. There was no reason for the deceased to lie about the manner in which the injuries were inflicted upon her to either Mr Cartwright or the doctor who was examining her. She did not volunteer the information. She simply gave an account of what happened to her when she was asked to do so.

94    I am of the same view in respect of the complaint made to the worker at the women’s refuge in respect of injuries suffered by the plaintiff on or about 5 March 1999. The deceased was still suffering the effects of the injuries, with pain and distress when she spoke to the refuge worker. The statement attributing the injuries to her de facto occurred in the course of the worker asking questions relating to her entry into the refuge and was not likely in those circumstances to be a fabrication.

95 Alternatively I am satisfied that all the statements to which I have referred are admissible under s 65(2)(c) of the Act. This provision requires that the representation be made in circumstances that make it highly probable that the representation is reliable. The requirement for admissibility under this section is a more onerous one than that under s 65(2)(b). Differing views have been expressed as to the extent of the circumstances which can be taken into account for the purposes of this assessment and, in particular, whether subsequent events can be considered; see R v Serratore, at [28] and Conway v R at [145].

96    I agree with the view expressed by Sperling J in R v Mankotia that the court is generally limited to a consideration of the circumstances in which the statement is made. However, I also respectfully agree with the view of the court in Conway v R at [145] that one of the relevant circumstances to be taken into account is whether the person making the representation has made other inconsistent representations. It seems to me that the reliability of the person making the representation either generally or in respect of the particular matter to which the representation relates is a relevant circumstance. In any event, it would be a relevant factor in considering the probative value of the evidence in determining its admissibility as hearsay evidence under s 137 of the Act.

97    Although the deceased has on occasions been inconsistent in attributing certain injuries to the accused, those inconsistencies can be easily understood when consideration is given to the circumstances in which the various explanations were given. The deceased can be seen as not wishing publicly to blame the accused for any of her injuries. She is not prepared to admit that the accused was assaulting her to persons with whom she did not have a close personal relationship, such as her employer, Mr Owens or the police, or where she is not in need of immediate aid, either to seek medical assistance or a place of refuge.

98 However, general statements made by the deceased that the accused was assaulting her and which are not related to particular injuries are not admissible. They do not have sufficient proximity to the asserted fact under s 65(2)(b). If I consider only the circumstances in which the statements are made, I am not satisfied that they meet the test in s 65(2)(c).

99    As to the letters written by the deceased, I was concerned that they might be overly prejudicial to the accused notwithstanding the importance of some aspects of them to the deceased’s attitude to her relationship to the accused and the violence he showed toward her. I would have been prepared to reject them as they add little to the other evidence which would be before the jury but might raise very great sympathy for the deceased and her plight. However, Mr Greenwood indicated that he would prefer one or more of them to be before the jury if the general evidence were to be admitted.

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Last Modified: 11/02/2000