The State of Western Australia v Hill
[2013] WASC 362
•1 OCTOBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HILL [2013] WASC 362
CORAM: CORBOY J
HEARD: 30 August 2013
DELIVERED : 1 OCTOBER 2013
FILE NO/S: INS 35 of 2013
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
MARK CHARLES HILL
Respondent
Catchwords:
Criminal law - Evidence - Evidence Act 1906 (WA), s 31A - Whether evidence of alleged threats and assaults by accused person propensity and relationship evidence - Whether the prosecution should be permitted to adduce the evidence
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Application to adduce evidence under s31A allowed in part
Category: B
Representation:
Counsel:
Appellant: Ms A Forrester
Respondent: Mr A E Eyers
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Anthony Eyers
Case(s) referred to in judgment(s):
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Daniels v The State of Western Australia [2012] WASCA 213
Evans v The State of Western Australia [2010] WASCA 34
Ferris v The State of Western Australia [2009] WASCA 54
Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Lockyer (1996) 89 A Crim R 457
O'Driscoll v The State of Western Australia [2011] WASCA 175
PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
T (a child) v The Queen (1998) 20 WAR 130
Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283
Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334
CORBOY J:
The application and the result
The State alleges that on or about 1 August 2012 at Bullsbrook, Mark Charles Hill murdered Roma Joyce Pollitt.
The statement of material facts alleges that:
(a)Mr Hill and the deceased had been in a domestic relationship. However, the deceased had obtained a violence restraining order against Mr Hill in July 2010. The order had expired shortly prior to her death.
(b)The deceased lived at a semi‑rural property in Bullsbrook. Mr Hill went to the deceased's house sometime between 12.30 am and 3.00 am on 1 August 2012. There were altercations between the deceased and Mr Hill and Mr Hill 'assaulted the deceased by unknown means resulting in her death'.
(c)Mr Hill then left the deceased's property and drove to Esperance later that day.
(d)The body of the deceased was discovered by a neighbour at about 6.30 pm on 1 August 2012. Mr Hill was arrested in Esperance the following morning.
(e)A post mortem examination disclosed that the deceased had suffered numerous injuries, including a broken rib and soft tissue injuries to her face, neck, trunk, limbs and scalp.
The trial of the indictment against Mr Hill is listed to commence on 4 November 2013. The State seeks to adduce the following evidence as propensity and/or relationship evidence pursuant to s 31A of the Evidence Act 1906 (WA):
(a)a letter dated 18 December 2009 from Mr Hill to the deceased;
(b)a telephone message left by Mr Hill on the deceased's mobile phone on 15 July 2010;
(c)telephone messages left by Mr Hill on the deceased's mobile phone in June and July 2010 (as admitted by Mr Hill in a recorded interview with police investigators following his arrest);
(d)a statement by Ms Ann Matthiessen describing an incident that she claims occurred on 25 July 2012 and which involved Mr Hill and the deceased;
(e)statements by Ms Jeanette Rutley describing violence and verbal abuse allegedly directed to her by Mr Hill, including an assault for which Mr Hill was convicted in August 2010.
Mr Hill opposes the State's application under s 31A of the Evidence Act. I have concluded that:
(a)the State should be permitted to lead evidence of the letter dated 18 December 2009, the telephone messages allegedly left by Mr Hill on the deceased's phone and the incident that Ms Matthiessen claims to have witnessed;
(b)the State should not be permitted to adduce evidence from Ms Rutley of the violence and abuse that she alleges was perpetrated by Mr Hill.
The State's anticipated case
The State's case is that the deceased died as a result of violent and sustained assaults by Mr Hill. Although the State concedes that the exact nature of the assaults are unknown, it will be alleged that they included the application of blunt force to the face, neck and head of the deceased on more than one occasion. It will be further alleged that the injuries to the deceased's neck and face are consistent with the possibility of neck compression - the sustained application of force by a person's hand to the throat or lower facial area. The State relies on the reports of Dr White, who conducted the post-mortem examinations, to substantiate the allegations that have been made about the injuries sustained by the deceased.
Dr White initially reported to the Coroner that the cause of the deceased's death was undetermined, pending further investigations. She then reported that the cause of death remained unascertained. Finally, she provided an amended supplementary report in which she advised that macroscopic neuropathology of the brain and spinal cord had been performed. Microscopic examination showed features of a traumatic concussive brain injury (PB 1108).
Dr White's amended supplementary report was submitted after she had received a report from a neuropathologist, Dr Fabian (PB 1111). Dr White expanded on her report in a letter to the Director of Public Prosecutions (WA) (PB 1102). The opinions expressed in that letter, incorporating the information provided by Dr Fabian, are consistent with the allegations made by the State in the summary of its anticipated case provided for this application.
The deceased lived alone at a property in Bullsbrook. Mr Hill admits, at least for the purpose of this application, that he went to the deceased's property during the evening of 31 July 2012 but says that the deceased was 'fine' when he left her house. That admission is consistent with statements made by Mr Hill in the course of a lengthy recorded interview conducted with police investigators following his arrest on 2 August 2012.
The prosecution brief includes statements from Mr Joerg Schoepf, a neighbour of the deceased. Mr Schoepf states that he saw and heard a motor vehicle on the driveway leading to the deceased's house at about 12.30 am on 1 August 2012. He heard the deceased shout, 'Fuck off'. He then heard some minutes later a motor vehicle drive away from the deceased's house towards a dam on her property. The vehicle subsequently returned to the house. Someone went into the deceased's house and remained inside for about 15 minutes. That person then drove off in the vehicle. Mr Schoepf did not identify the person (PB 122 ‑ 126).
According to Mr Schoepf, the vehicle was towing a trailer. He thought that the trailer was empty when he first heard the vehicle on the driveway of the deceased's property but that something had been loaded into the trailer by the time that it was driven away from the property. Mr Hill admitted to the police following his arrest that he had gone to the deceased's property on 31 July 2012 with a trailer to collect a quad bike that was stored at the property. Mr Schoepf stated that he had observed the quad bike in a shed near the dam on the deceased's property during the afternoon of 31 July 2012 but had noted that the quad bike was no longer in the shed at about 10.00 am on the following day (PB 143 ‑ 152).
The State's case against Mr Hill is largely circumstantial. The circumstances on which the State intends to rely include evidence about the relationship between the deceased and Mr Hill:
(a)Mr Hill was sentenced to a term of imprisonment in 2009. He communicated with the deceased in a 'romantic tone' while in custody. However, the State alleges that Mr Hill's correspondence became 'abusive and threatening, with demands for repayment of money [that Mr Hill] asserted he was owed by [the deceased] being somewhat central to the communications' by the end of 2009 (State's outline of submissions, par 7).
(b)Mr Hill allegedly sent abusive correspondence to the deceased and left threatening telephone messages on her phone in mid 2010. That resulted in the deceased applying for a violence restraining order. The application was granted and an order was made for a period of two years.
(c) Mr Hill was detained in custody for 12 months commencing in early June 2011. Telephone records suggested that he had resumed contact with the deceased from about mid June 2012.
(d)The deceased had surgery, including a decompressive craniectomy, in 2011. A titanium cranioplasty was inserted in early 2012. The deceased was said by her neurosurgeon to have made a full recovery with no evidence of seizures and no suggestion that she was experiencing difficulties with her balance. However, Mr Hill told police that the deceased had been affected by her operation - she had become clumsy and there had been changes in her behaviour that had impacted adversely on their relationship (PB 662 - 665).
The other circumstances on which the State intends to rely include that:
(a)Mr Hill's telephone records indicate that he made several attempts to contact the deceased during the afternoon and evening of 31 July 2012. He also sent a text message to Ms Matthiessen, advising that he proposed to break away from the deceased and that he wanted to travel to Esperance.
(b)Mr Hill's motor vehicle was captured on CCTV shortly prior to midnight on 31 July 2012, travelling on a highway in the direction of the deceased's property and then again at 2.29 am on 1 August, travelling on the same highway in the opposite direction.
(c)Mr Schoepf went to the deceased's house at about 7.00 pm on 1 August 2012. He discovered that the deceased was dead.
(d)Mr Hill arrived in Esperance late in the afternoon of 1 August 2012. He endeavoured to contact Ms Matthiessen and then drove to the house of an acquaintance in Grass Patch. He was observed to have abrasions on his nose and his left cheek, his right eye was red and his glasses appeared to have been broken. He told his acquaintance that he had a woman in his life aged about 60 years (the deceased's age at the time of her death); that she was 'sponging off' him; that he had had enough of her and the city so he had thought, 'bugger it' and had headed to Esperance.
As has been noted, the State also relies on post‑mortem evidence of injuries sustained by the deceased. Further, the State proposes to adduce evidence that swabs taken from the following sites contained DNA that matched Mr Hill's profile: a blood sample taken from the ring finger of the deceased's right hand; a blood sample taken from the floor near a breakfast bar; a bowl found on the floor of the room in which the deceased was found; a blood sample taken from a pair of underpants found on the floor of the room in which the deceased was found and a stool located in the deceased's house. In addition, blood stains were found on Mr Hill's clothes and in his motor vehicle following his arrest.
Mr Hill's record of interview and the State's anticipated case
Mr Hill participated in a recorded interview with police following his arrest. He denied that he had been at the deceased's property during the night of 31 July 2012 for some time in the interview. However, he later admitted that he had travelled to the property that evening to collect his quad bike. He made that admission after being informed that someone had noted that the bike had been removed from a shed where it had been stored on the property. He said that he had gone to the property at about 9.00 pm.
Mr Hill also admitted subsequently that he had spoken to the deceased. He had told her that he was taking the quad bike and intended to go to Esperance. He suggested at one point in the interview that Mr Schoepf may have been responsible for killing the deceased (PB 757 ‑ 758).
Mr Hill also provided the police with an explanation for the abrasions to his face and stated that the deceased had a wound to her leg that he had dressed during the day of 31 July 2012. He repeatedly denied that he had argued with the deceased that night or that he had assaulted her. He maintained that he had merely told her that he was departing for Esperance and suggested that she may have shouted words to effect, 'well fuck off then' as he had left.
Mr Eyres, who appeared for Mr Hill, indicated that Mr Hill's case was consistent with what he had eventually told the police - that he had gone to the deceased's property on the night of 31 July 2012 but he had not assaulted her and that she had been 'fine' when he had left her property. Mr Hill did not intend to allege at the trial that any particular person had killed the deceased but it was to be noted that there was a substantial period between when he was alleged to have been at the deceased's property and when the deceased's body had been found (ts 47 ‑ 48).
The likely issues in the trial
The State submitted that the following issues were likely to be central to the trial:
(a)the cause of the deceased's death (that is, whether she was killed - see s 270 of the Criminal Code);
(b)if the deceased was killed, whether Mr Hill was the person who had killed her;
(c)whether the deceased had been unlawfully killed; and
(d)Mr Hill's intent (if he was the person who had killed the deceased).
Mr Hill's submissions
Mr Hill accepted the State's statement of its anticipated case for the purpose of the application. He also accepted that the primary issues to be determined at trial were those that had been nominated by the State.
Mr Hill made detailed submissions on why the State should not be permitted lead each item of evidence that was the subject of the application. Those submissions are summarised later in the reasons when the evidence proposed to be adduced by the State is further considered.
The relevant principles
As Mazza JA observed in Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [33], the history and interpretation of s 31A of the Evidence Act has been considered by the Court of Appeal in a number of cases. His Honour summarised the principles that emerged from those cases and I gratefully adopt that summary. Accordingly, it is only necessary to briefly mention those propositions that are particularly relevant to the determination of this application:
(a)Although the application is made pursuant to s 31A of the Evidence Act, it is to be noted that, at common law, evidence of the relationship between an accused person and the deceased will generally be admissible in a murder trial. As Ipp J observed in T (a child) v The Queen (1998) 20 WAR 130 at 141, 'in a trial of wilful murder, where the victim has been killed by a person with whom he or she has had some emotional or physical or otherwise intimate relationship, evidence as to the nature of that relationship is ordinarily admissible'; and see, for example, Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334; Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283; Evans v The State of Western Australia [2010] WASCA 34 (in which the Court of Appeal endorsed the approach taken in T (a child) v The Queen) and O'Driscoll v The State of Western Australia [2011] WASCA 175. In Wilson, the High Court held that the trial judge had correctly allowed evidence to be led of statements made by the deceased to the accused (her husband) in the presence of other witnesses that, 'I only know you want to kill me for my money' and 'I know you want to kill me, why don't you get it over with'. The evidence cast light on the relationship between the deceased and the accused in circumstances where the accused claimed that his wife's death had been caused by the accidental discharge of a gun. Evidence of the animosity between the accused and the deceased was relevant to determining whether the deceased's death had been accidental or intentional.
(b)At common law, the term 'relationship evidence' refers to evidence relating to the accused and a victim that will often be admissible because it tends to prove how or why the conduct, the subject of the pending criminal proceedings, arose or because it makes it more probable than not that the conduct charged against the accused occurred at the time or place or in the manner alleged. The evidence may be admissible for the purpose of proving 'the accused's guilty passion, intention or propensity, or the accused's opportunity or motive to commit the offence alleged against him': PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489 [237] (Buss JA).
(c)Section 31A should not be construed as exclusively defining the circumstances in which evidence which might come within the scope of the section is admissible: Ferris v The State of Western Australia [2009] WASCA 54 [63] (Martin CJ).
(d)The definition of propensity evidence in s 31A(1) of the Evidence Act is extraordinarily wide and goes beyond what the common law understood by that category of evidence. It embraces not just similar fact evidence but also evidence of the character or reputation of the accused or of a tendency that she or he has or had, as well as other evidence of the conduct of the accused person: Preston [36] (Mazza JA). The evidence proposed to be adduced must, of course, be relevant. It must be evidence that could rationally effect, directly or indirectly, the assessment of the probabilities of the existence of a fact in issue in the proceedings (Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 [2] (Gleeson CJ)) or evidence that bears upon the assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. The evidence may explain an event that would otherwise appear curious or unlikely and it may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context that is helpful or even necessary for understanding a narrative: HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6] (Gleeson CJ).
(e)The word 'significant' in s 31A(2)(a) means 'important' and 'of consequence': Preston [38] (Mazza JA); Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [61] (Steytler P). The significance of the probative value of propensity or relationship evidence, whether led by the prosecution or the accused, must depend on the nature of the fact in issue to which it is relevant and the significance or importance which that evidence may have in establishing that fact: Lockyer (1996) 89 A Crim R 457.
(f)The test in s 31A(2)(a) will be satisfied if 'the court "considers" (that is, thinks) that the propensity evidence "would" (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue': Daniels v The State of Western Australia [2012] WASCA 213 [49] (Buss JA).
(g)The fair‑minded person postulated by s 31A(2)(b) is presumed to be a reasonable member of the general public who is not a lawyer but who has informed himself or herself of at least the basic considerations relevant to arriving at a conclusion founded on a fair understanding of all of the relevant circumstances: Preston [42] (Mazza JA). The court must decide, in effect, whether fair‑minded people would think that the interests of justice required the admission of the evidence despite the risk of an unfair trial.
(h)A factor to be considered in determining the risk of an unfair trial is the effect of any direction that could be given to neutralise the risk: Preston [41] (Mazza JA). However, a 'propensity warning' would not ordinarily be given to the jury about the use to be made of evidence admitted under s 31A.
The different approaches to the proposed evidence
There was a difference in the approach taken by the State and Mr Hill to the evidence proposed to be lead about the relationship between Mr Hill and the deceased. The State submitted that the various items of evidence should be assessed together; that is, as evidence of a course of threatening conduct by Mr Hill directed to the deceased that established that he had a tendency to be aggressive and violent. In particular, the evidence:
(a)was evidence of a tendency that Mr Hill had (propensity evidence) and evidence of the attitude or conduct of Mr Hill towards another person or class of persons over a period of time (relationship evidence);
(b)established that Mr Hill had a tendency to:
(i)make violent threats to the deceased;
(ii)to become irrationally angry to the deceased;
(iii)to act in a violent manner towards the deceased when sufficiently angered.
Mr Hill, on the other hand, focused separately on each item of evidence. It was submitted that each item concerned an event that was remote in time from when Mr Hill was alleged to have killed the deceased and that the proposed evidence would merely serve to distract the jury from the real issues to be determined on the State's case.
Section 31A(1) of the Evidence Act defines 'relationship evidence' to mean evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time. In my view, the admissibility of an item of evidence as relationship evidence under s 31A is not to be determined by considering the item in isolation from other evidence regarding the relationship between the accused person and the person or class of persons concerned. That follows from the very nature of the evidence - evidence about the attitude or conduct of the accused person - and the inclusion of the words 'over a period of time' in the definition.
Similarly, 'propensity evidence' is defined to include evidence of the conduct of the accused person and evidence of a tendency that the accused person has or had. It is unlikely that evidence of a particular act or omission by an accused person viewed in isolation will indicate a tendency in that person. Accordingly, it will be necessary to consider the items of evidence that are said to be admissible because they disclose a tendency in an accused person in the context of other evidence that may be relevant to the existence or otherwise of the alleged tendency.
Accordingly, I accept that the admissibility of the evidence concerning the relationship between Mr Hill and the deceased should be determined by considering the evidence as a whole as the State submitted.
The letter dated 18 December 2009
The letter dated 18 December 2009 was written by Mr Hill to the deceased while he was in custody. The relevant part of the letter stated:
You better get the $100 to Spida that I borrowed for you! Do it now or you will meet Phil. You don't want to meet Phil … I'll be checking with Spida when he has his money back. Tonya is not to know about the $100. If she finds out you will wish she didn't. I'm not a man to be fucked around by stupid, lazy women (PB 455 ‑ 456).
The State apparently seeks to link the letter to statements made by Mr Hill to the police following his arrest. He referred in his recorded interview to a shotgun that he had possessed by using the name 'Steven'. He said, 'You don't wanna meet Steven. But Steven got taken away by the police, of course, and destroyed' (PB 695).
Mr Hill submitted that:
(a)the letter bore little or no temporal relation to the date of the alleged murder;
(b)any assertion that Mr Hill was referring to a gun called 'Phil' in his letter was merely an invitation to the jury to speculate;
(c)the letter was threatening and unpleasant in nature but not in terms that might assist the jury in a relevant sense as to Mr Hill's tendency to make violent threats; and
(d)the letter would merely serve to undermine Mr Hill's credibility without rationally assisting the jury with the facts in issue.
I accept that the inference that the State apparently seeks to draw from the reference to 'Phil' in the letter is speculative. The letter was not discussed in the police interviews with Mr Hill.
However, the letter clearly contains a threat regardless of the true meaning of the reference to 'Phil'.
The telephone messages
On or about 15 July 2010, Mr Hill left a telephone message on the deceased's phone in which he demanded that she repay him money that he claimed was owing; that he was going to go to her house; that he would slit the throat of the deceased's dog if the dog nipped him and that 'you will do what I tell you' (audio played during hearing in Midland Magistrates Court on 21 July 2010 - and see PB 482 ‑ 492).
Further, Mr Hill admitted in his interview with the police following his arrest that he had made calls of that kind prior to the deceased seeking a violence restraining order in July 2010. In particular, Mr Hill stated that he had left two messages on the deceased's phone. The messages were left after Mr Hill claimed that he had spent $900 on repairing the deceased's car. Mr Hill (who frequently spoke during his interview with the police investigators in the form of conversations between himself and others) said that he had stated in the first message:
Now listen here, you fat lazy bitch. There's nothing wrong with you. You're not a cripple. You get off your fucking arse and go get a job and, and do something without life. And start paying me back some of the money you owe me for fixing your car.
Mr Hill stated that the second message was to the effect that:
Now listen here, you fat fuck. I'll come up there and I'll just put an axe through your water tank. How do you realise - how do you - would you think good do you're going to be up there with no water?
It is apparent from the prosecution brief that there is no record of either of the telephone messages and no evidence that they were made apart from what Mr Hill told the police during his interview. It is to be inferred that Mr Hill's statements reflect his recollection of the gist of the messages.
Mr Hill objected to evidence of each of the phone messages being lead on the following grounds:
(a)the messages bore little or no temporal relation to the date of the alleged murder;
(b)two of the messages constituted a demand for repayment of money allegedly owed but were not violent threats aside from their unpleasant language and tone;
(c)the messages could not rationally assist the jury as to Mr Hill's alleged tendency to make violent threats against the deceased or to become irrationally angry or act violently towards the deceased when sufficiently angry;
(d)the last message contained a threat to damage the deceased's property but not to do violence to her person;
(e)the content of the messages was insufficiently specific or analogous to the behaviour and tendencies alleged against Mr Hill to be relevant and admissible under s 31A of the Evidence Act in the context of the charge of murder that had been alleged against Mr Hill.
The incident on 25 July 2012
Ms Matthiessen describes in her witness statement an argument that she claims to have witnessed between Mr Hill and the deceased on 25 July 2012. Ms Matthiessen states (statement dated 4 August 2012, pars 171 ‑ 178):
All of a sudden [Mr Hill] came up and stood behind [the deceased] and yelled out 'Why don't you fucken shut up', or something similar.
[The deceased] was cowering in her chair she was obviously very scared.
[Mr Hill] then picked up a grey coloured funnel and swung it at her head.
[The deceased] was still sitting down at the time and [Mr Hill] was standing directly behind her, less than a metre away.
It looked like he was going to hit her over the head but change [sic] his mind at the very last second and let it go.
It narrowly missed her head and flew past me.
He shouted, 'Sometimes I just want to kill you.'
It was like he became a different person he had a look of absolute rage on his face.
Mr Hill referred to the incident in his interview with the police investigators. He was asked whether he had argued with the deceased. He replied by describing an argument about a mobile phone that had occurred approximately two weeks prior to when he was interviewed. He said in the course of his account that (at PB 682 ‑ 683):
And I'm trying to put, put this through her head for about 10 minutes. And in the end of it I just got frustrated. And I think I had a plastic funnel in my hand at the time. I just threw it (indistinct) I said, 'Listen, you stupid fat cunt. Wake up'.
…
'Realise it's - the only way I can get through to you is to be rude and aggressive. Give me Optus number.' 'No, I'll just take it to All Phones when I go to Midland one day. I will do it that way.'
…
Oh, I - just frustrated because I couldn't - she wouldn't accept my help.
Mr Hill objected to evidence of this incident being led on the following grounds:
(a)Ms Matthiessen offered no 'contextual background' in her witness statement as to why Mr Hill was angry;
(b)in any event, the incident was more akin to a tantrum than an instance of actual violence;
(c)the accused's statement 'Sometimes I just want to kill you' appears 'once more to be one of the many such empty utterances [Mr Hill] tends to make to various people when displeased';
(d)the incident could not rationally assist the jury in a relevant sense as to Mr Hill's tendency to make violent threats against the deceased specifically (as opposed to his way of speaking generally) or to become irrationally angry towards the deceased or to act violently towards the deceased when sufficiently angered;
(e)the incident 'is simply insufficiently analogous to the behaviour and tendencies alleged against [Mr Hill] as part of the murder allegation'.
It was to be noted in relation to the first of those objections that Mr Hill had provided a reasonably detailed explanation of the context in which he had thrown the funnel during his interview with the police.
Some preliminary points
The relationship between Mr Hill and the deceased was canvassed in some detail in the interview between the police and Mr Hill. The statements made by Mr Hill about the relationship are further considered in the next section of the reasons. However, three preliminary points regarding the admissibility of the evidence that the State seeks to lead should be noted. In my view:
(a)Evidence of the relationship between Mr Hill and the deceased is generally admissible at common law having regard to the issues to be determined by the jury.
(b)Evidence of threats or demands made by Mr Hill to the deceased or of hostility expressed towards her is propensity and relationship evidence within s 31A of the Evidence Act. It is, at least, evidence of Mr Hill's conduct (propensity evidence) and evidence of his attitude or conduct towards the deceased (relationship evidence).
(c)The issues to be determined concerning the admissibility of the evidence about the letter, telephone message and the incident described by Ms Matthiessen are whether:
(i)the evidence is evidence of a tendency that Mr Hill had and is, accordingly, propensity evidence on that ground (in addition to evidence of the conduct of Mr Hill);
(ii)the evidence has significant probative value;
(iii)the probative value of the evidence (if significant) compared to the degree of risk of an unfair trial is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
Mr Hill's statements about his relationship with the deceased
Mr Hill made a number of statements to the police about his relationship with the deceased that are relevant:
(a)He had known the deceased for approximately 25 years. He described the relationship as being a 'rocky road' over the previous few years, but they were 'good mates together' (PB 662).
(b)Mr Hill had spent money on repairing the deceased's car (PB 665). It was that money he had demanded that the deceased repay in the messages that he had left on the deceased's phone in July 2010 (PB 666).
(c)Mr Hill had left similar messages on the deceased's phone to the messages left in July 2010: 'But it would be just similar, sort of, aggressive tones' (PB 669).
(d)He had been 'busting' to telephone the deceased when the restraining order had expired (PB 671).
(e)The deceased had contacted him after the violence restraining order had expired. They had been together 'pretty much constantly' over a period of about 10 days prior to the date of the interview (PB 668).
(f)Mr Hill had not had any serious arguments with the deceased (PB 672). He described having spent pleasant, social days with her on 30 and 31 July (PB 672 ‑ 679). He then referred to the incident that Ms Matthiessen has stated occurred on 25 July 2012, admitting that he threw a plastic funnel at the deceased (PB 680 ‑ 683). However, he maintained that he had not had any other serious arguments with the deceased (see, for example, PB 686, 706 and 721).
(g)He also described various ways in which he had assisted the deceased in the days before she had died - for example, by taking her shopping, chopping wood, making her breakfast and cups of tea and dressing a rash or wound. It was put to Mr Hill after the interview had progressed for some time that 'I've got no doubt you and [the deceased] were pretty close, by the sounds of things'. Mr Hill responded by saying that they were 'good friends but we're not people to be spending their time forever' (PB 716). That exchange was a brief but reasonably accurate summary of the way in which Mr Hill portrayed his relationship with the deceased during the police interview.
(h)Mr Hill gave an account of his exchange with the deceased on the night of 31 July 2012 (after admitting that he had gone to the deceased's property to collect his quad bike) that suggested an amicable parting or, perhaps, some unhappiness on the part of the deceased about his decision to travel to Esperance. That explained the possibility that the deceased had shouted words to the effect, 'Fuck off' as claimed by Mr Schoepf (see, for example, PB 731, 738 ‑ 740 and 757). However, when asked why he did not remember if the deceased had shouted those words at him, Mr Hill stated (at PB 751):
Because I don't give a fuck what she thinks and what she does. She's just been sponging off me. She did it years ago. I thought she might have changed. But unfortunately now with the head trauma she got an excuse she believes in her own mind … to sit around and smoke cones.
(i)He then explained that he had respected the deceased but he had used her to drive him around (PB 752 ‑ 753). He added that he had wanted to 'move away' from the deceased and his trip to Esperance was a 'scouting mission' (PB 755).
That part of the police interview conducted with Mr Hill that concerned his relationship with the deceased is lengthy and necessarily nuanced. The above summary cannot, and is not intended to, capture the effect of the interview. Rather, the summary identifies particular matters that are, in my view, relevant to the determination of the application:
(a)The inference from the interview is that Mr Hill did not contact the deceased during the term of the restraining order (two years). He said at one point that he was 'busting' to speak to the deceased when the order expired. He immediately referred to the incidents in July 2010 that had preceded the order when he was asked about whether he had argued with the deceased. Those matters indicate that the letter and the telephone messages are not so remote in time from the death of the deceased that they necessarily lack significant probative value when assessed against the interview as a whole and the issues to be determined by the jury.
(b)That was the view apparently taken by Mr Hill during the interview. It is not surprising that he readily referred to matters that had occurred prior to or around the time of the violence restraining order given his assertion that he had not contacted the deceased during the term of the order.
(c)The telephone messages and the incident described by Ms Matthiessen were raised by Mr Hill during his interview with the police. It would be necessary to edit the record of interview if the State's application was refused. The editing would, in my view, distort the effect of the statements made by Mr Hill during the interview about his relationship with the deceased. The jury would be denied possibly significant aspects of his 'narrative' of the relationship.
(d)It is open to conclude from the interview that Mr Hill uses aggressive and unpleasant language to express what are, in substance, empty threats (as his submissions suggested). However, that is a matter for the jury to consider in the context of all of the evidence adduced in the trial, including the evidence of Mr Hill's interview with the police.
(e)It was to be expected that the interviewing detectives would focus on Mr Hill's relationship with the deceased as they did not have direct evidence about who was responsible for her death. The State's case against Mr Hill remains circumstantial and his relationship with the deceased will be central to the issues that the jury will be required to determine. Mr Hill's interview with the police illustrates how the telephone messages and the incident that Ms Matthiessen claims to have witnessed form a material aspect of that relationship.
In my view:
(a)Evidence of the letter of 18 December 2009, the telephone messages left on the deceased's phone in mid July 2010 and the incident that Ms Matthiessen claims to have witnessed is admissible at common law for the reasons identified by Buss JA in PIM v The State of Western Australia and the other authorities to which reference was made early in the reasons.
(b)Further, the evidence:
(i)is relationship evidence for the purpose of s 31A of the Evidence Act;
(ii)is evidence of Mr Hill's conduct within the definition of propensity evidence contained in s 31A;
(iii)is evidence that is immediately relevant to whether Mr Hill killed the deceased as the State alleges and if so, his intent;
(iv)is evidence that may be relevant to whether the deceased was killed;
(v)is evidence that is relevant to the narrative of Mr Hill's relationship with the deceased and to an assessment of the statements made by Mr Hill to the police about the relationship.
(c)The evidence is evidence that has significant probative value according to the test specified in Dair v The State of Western Australia and explained in Daniels v The State of Western Australia.
(d)A direction about the use to be made of the evidence will not be difficult for the jury to apply having regard to the contents of Mr Hill's interview with the police. Further, the effect of editing out statements about the telephone messages and the incident involving the plastic funnel on a proper and fair assessment of what Mr Hill told the police about his relationship with the deceased is a matter that a fair‑minded person would take into account for the purpose of the comparison required by s 31A(2)(b).
(e)A fair‑minded person would think that the public interest in adducing the evidence, as part of all of the evidence relevant to guilt, must have priority over the risk of an unfair trial.
(f)Evidence of the letter, the telephone messages and the incident involving the funnel might constitute evidence of a tendency that Mr Hill has or had as the State contended. However, the letter and telephone messages might disclose no more than a tendency in Mr Hill to express himself in a particular way and accordingly, evidence about those matters might not necessarily be assimilated with evidence about the incident involving the funnel. The question of whether the evidence discloses a tendency in Mr Hill and if so, the nature of that tendency can, in my view, be left to the trial given that the State will be permitted to adduce the evidence on other bases. The question can then be considered in the context of the evidence as a whole. It would seem that the answer to the question will be most directly relevant to the submissions that might be properly made by counsel in closing and the directions that are to be given to the jury about the use that may be made of the evidence.
Ms Rutley's statements
There are four witness statements in the prosecution brief that were apparently made by Ms Rutley: statement dated 8 August 2012 (PB 5 ‑ 12); statement dated 21 February 2013 (PB 814 ‑ 825) and two unsigned and undated statements (PB 833 ‑ 837 and PB 843 ‑ 846). The last of those statements is not relevant to the application. The statement at PB 833 ‑ 837 will be referred to as the 'third statement'.
Ms Rutley stated in her witness statement dated 8 August 2012 that she was in a de facto relationship with Mr Hill in 2001 and 2002. He continued to reside with her after the relationship ended until 2007.
Ms Rutley further stated that:
(a)She and Mr Hill had 'an abusive relationship' and he physically attacked her on a 'few' occasions. Mr Hill 'talked about committing acts of violence when [he] was sober and then he would get drunk and carry them out'. His violence towards her would consist of verbal abuse followed by slapping her face (PB 5, pars 8 ‑ 9).
(b)Mr Hill knocked Ms Rutley to the ground and sat on her squeezing the air from her lungs on one occasion. He then put one hand around her throat and strangled her until she could not breathe (PB 6, pars 11 ‑ 12).
(c)On another occasion, Mr Hill attacked Ms Rutley in the bathroom, hitting her and then pushing her into the bath.
Ms Rutley does not identify when those incidents occurred in her statement of 8 August 2012.
Ms Rutley states in her statement of 21 February 2013 that she can recall two 'specific' acts of violence allegedly committed by Mr Hill. The first act occurred in about 2007 and involved an assault allegedly committed in the bathroom of her house. That is obviously a reference to the third incident identified above. Ms Rutley adds little detail about that incident in her statement of 21 February 2013.
The second matter to which Ms Rutley refers in her statement of 21 February 2013 is the assault committed by Mr Hill on 22 August 2010 for which he was convicted. That is the second alleged assault identified above from Ms Rutley's statement of 8 August 2012 (at pars 11 and 12).
Ms Rutley explains in her statement of 21 February 2013 that Mr Hill resided at her house for about 18 months prior to August 2010. They were not in an intimate relationship. According to Ms Rutley, the assault occurred sometime after 3.00 am on 22 August 2010. Mr Hill had returned home from a party 'totally drunk' (PB 816, par 25).
Ms Rutley describes various assaults, including that Mr Hill sat on her chest with his legs either side of her body and placed his left hand on her throat. He then choked her 'extremely hard' so that she had 'extreme difficulty' in breathing. She had blood in her mouth from a split lip. Mr Hill said at one point during the assaults, 'you are going to drown in your own blood here Jean' (PB 817, par 44). However, he released his grip on her throat and said, 'I'm not going to kill you, you have been too kind to me over the years' (par 47). He then got up and let her wash blood from her face. Ms Rutley subsequently telephoned her son who drove her to hospital.
Photographs included in the prosecution brief show that Ms Rutley had extensive bruising to her right eye and the left side of her neck as a result of Mr Hill's assaults. A medical report dated 23 August 2010 (PB 839) makes reference to Ms Rutley having been strangled and to mild tenderness in the area of the neck. A subsequent medical report confirmed a diagnosis of a distal clavicle fracture. Two further fractures were noted by a specialist radiologist in another report (PB 842).
The third statement also describes the assault committed by Mr Hill in August 2010. I infer from pars 66 and 67 of the statement dated 21 February 2013 that the third statement was made shortly after the assault. There are some differences between the third statement and the statement of 21 February 2013 regarding the sequence of assaults. However, those differences are not relevant for this application.
Mr Hill was charged with aggravated assault occasioning bodily harm. He pleaded guilty to that charge and was sentenced to a conditional release order for a period of eight months. On 8 July 2011, he was sentenced to 12 months' imprisonment in relation to 45 charges of breaching violence restraining orders. A number of those offences related to breaching a violence restraining order that had been obtained by Ms Rutley and to breaches of the conditional release order that had been made in respect of his assault on her.
The police interview
Mr Hill was interviewed by the police on 2 August 2012 about allegations that he had breached a violence restraining order obtained by Ms Rutley by making six telephone calls to her on 13 July 2012 (PB 762 and following). The interview was conducted after he had completed the interview concerning the death of the deceased. The interviewing detectives were not the same detectives who had interviewed Mr Hill about that matter.
Mr Hill stated that the police, in effect, obtained the restraining order (at PB 768):
The police did 'cause I slapped the girl
- - - and then she went straight to the coppers and I said, 'What you need, you're like a naughty little girl', and just, 'boom' across the face and she said, 'Oh fuck, that hurt, Mark.' And I said, 'Yeah,' and I said, 'Well, bang, here's another one for the other side,' I slapped, not a punch, and I said, 'Now you get off the fucking floor. You're never stick - the next time you stick a needle in your arm, I'll stick it up your bum,' and, ah, so she went up to the coppers, got a restraining order.
Mr Hill denied that he had telephoned Ms Rutley on 13 July 2012. He stated that she had been the only woman that he had ever 'slapped' in his life and that he was disgusted with himself for having done so. He explained that he was angry because she had used his money to 'put needles' in her arms (PB 778). He also attributed the incident to being intoxicated and 'this is what's pulled me up and sent me to AA and I've had counselling and rehab' (PB 785). He also stated that he had not been 'full of piss, rotten blind, maggoty drunk for years' (PB 784). He reiterated in the balance of the interview his allegation that Ms Rutley had been a drug addict who had used his money to purchase drugs.
Mr Hill also recounted assaulting a male associate who had borrowed money from him and which Mr Hill later discovered had been used to purchase drugs. He said, 'I know you're not allowed to punch a bloke on the nose but I did because he's a junkie. I have a temper problem with junkies' (PB 791).
The parties' submissions on Ms Rutley's proposed evidence
The State submitted that Ms Rutley's evidence was propensity and relationship evidence under s 31A of the Evidence Act as it was evidence of:
(a)violence by Mr Hill towards Ms Rutley in the context of a relationship between them;
(b)evidence of an assault by Mr Hill upon Ms Rutley on 22 August 2010;
(c)evidence of a tendency that Mr Hill has or had to:
(i)make violent threats to women with whom he has been in an intimate relationship;
(ii)become irrationally and extremely angry in arguments with those women; and
(iii)act in a violent manner towards the object of his anger;
(d)evidence of the attitude or conduct of Mr Hill towards women with whom he is or has been in an intimate relationship with over a period of time - that is, evidence that he had a 'very violent, threatening attitude towards a former female partner and was prepared to act upon that on occasion' (State's submissions, par 115).
The State further submitted that:
(a)The injuries sustained by Ms Rutley in the assault that occurred on 22 August 2010 had 'a number of clear and striking parallels with the present matter' in that the evidence of Dr White, if accepted by the jury, disclosed that sustained and significant pressure had been applied to the face, neck and throat area of the deceased; the deceased had significant mouth injuries; the deceased had a fractured rib and a bruised abdomen and there were significant facial bruises.
(b)The assault on 22 August 2010 is evidence of the conduct of Mr Hill in that it is evidence that 'on a prior occasion involving a former intimate partner when angry, [Mr Hill] as part of an assault, applied significant manual pressure to the face, neck and throat of his victim and applied significant force in blows to the victim's face. As such, it is particular evidence of propensity, over and above evidence of his general attitude and conduct towards his former female partners' (State's submissions, par 118).
Mr Hill opposed the State being permitted to adduce evidence of the assault he had committed on Ms Rutley in August 2010 on the following grounds:
(a)it bore little temporal relation to the date of the alleged murder;
(b)it occurred when Mr Hill was 'blind drunk';
(c)the lack of an analogous intimate relationship with the deceased and the lack of evidence that Mr Hill was drunk on the day on which the deceased was allegedly killed meant that evidence of the assault could not rationally assist the jury as to whether Mr Hill has or had the tendencies alleged by the State.
Mr Hill objected to the State being permitted to adduce evidence of the other assaults he allegedly committed as:
(a)Ms Rutley had not identified the dates when the alleged incidents had occurred, and even if they had occurred prior to, in, or about 2007, they bore no temporal relation to the date of the alleged murder and she offered no evidence about what had allegedly occurred other than to assert that she had been assaulted;
(b)the assaults allegedly occurred when Mr Hill was drunk;
(c)Ms Rutley offered no context as to why the assaults had allegedly occurred, apart from Mr Hill being drunk;
(d)the lack of an analogous intimate relationship with the deceased meant that the alleged assaults could not rationally assist the jury as to whether Mr Hill has or had the tendencies alleged by the State.
Mr Hill further objected to Ms Rutley being permitted to give evidence of any assault allegedly committed by him on the following grounds:
(a)Mr Hill was 'hardly' in an intimate relationship with the deceased;
(b)even if it was found that Mr Hill and the deceased were or had been in an intimate relationship, it was not a relationship that extended over a long period of time as was the case with Ms Rutley; and
(c)consequently, any particular attitude or conduct that Mr Hill might have had towards Ms Rutley did not necessarily extent to the relationship that he had with the deceased.
Ms Rutley's statement of 8 August 2012
As has been noted, Ms Rutley's statement of 8 August 2012 referred to the assault in August 2010 for which Mr Hill was convicted and to assaults that were allegedly committed some time earlier by Mr Hill. The question of whether the State should be permitted to adduce evidence of the assault committed by Mr Hill in August 2010 is dealt with in the next section of the reasons. The question is considered primarily by reference to Ms Rutley's statement of 21 February 2013.
This section of the reasons is concerned with whether the State should be permitted to adduce evidence of the other assaults that Ms Rutley alleges were committed by Mr Hill. References in this section to Ms Rutley's statement of 8 August 2012 are to the evidence that it is anticipated would be given about those assaults. Ms Rutley's statement of 21 February 2013 does not materially add to the detail of those assaults except to identify that one of the assaults was alleged to have occurred in 2007. That statement is, however, relevant to this part of the application in that Ms Rutley states that she could only recall two 'specific assaults' perpetrated by Mr Hill.
It is apparent that Ms Rutley's witness statement of 8 August 2012 was provided at an early stage of the police investigation into the death of the deceased (Mr Hill was first arrested on the morning of 2 August 2012; however, the prosecution notice is dated 16 August 2012). The statement contains little detail about the incidents to which Ms Rutley refers. It is not clear whether the incidents that she briefly describes occurred while she and Mr Hill were in a de facto relationship or while Mr Hill was living with her after that relationship had ended (apart from the assertion in the subsequent statement of 21 February 2013 that one of the assaults occurred in 2007).
I consider that the State should not be permitted to adduce evidence of the incidents alleged by Ms Rutley in her witness statement of 8 August 2012 for two reasons:
(a)the evidence is too vague to enable a finding to be made about whether it is evidence of a tendency in Mr Hill of the kind alleged by the State or of an attitude that he possessed or conduct that he exhibited towards a class of persons;
(b)the evidence does not have significant probative value even if it is propensity or relationship evidence for the purpose of s 31A of the Evidence Act as the evidence is vague and concerns assaults that were allegedly committed up to ten years prior to 2012 in a relationship that did not involve the deceased.
I also consider that the State should not be permitted to adduce evidence of the assaults and abuse alleged by Ms Rutley in her statement of 8 August 2012 for the reasons that follow concerning the admissibility of the August 2010 assault. Those reasons reflect the gist of the submissions made by Mr Hill.
The August 2010 assault
Mr Hill was heavily intoxicated when he committed the assault on Ms Rutley in August 2010. That is apparent from Ms Rutley's witness statements and the admissions made by Mr Hill to the police when interviewed on 2 August 2012. As has been noted, Ms Rutley asserted that Mr Hill had, in her experience, a tendency to talk about 'committing acts of violence when he was sober' and that 'he would then get drunk and carry them out' (statement dated 8 August 2012, par 9). She also said that Mr Hill used money as an excuse to make threats (par 35).
Mr Hill acknowledged in his interview with the police on 2 August 2012 that alcohol had contributed to the assault that he had committed on Ms Rutley in August 2010. However, the State does not allege that Mr Hill was intoxicated during the night of 31 July 2012. He denied during his interview with the police that he had been drinking heavily.
The State did not contend that Ms Rutley's evidence disclosed that Mr Hill became violent when intoxicated. That was significant for three related reasons. First, it glossed over the substantive effect of Ms Rutley's evidence. Second, the primary allegation made by Ms Rutley - that Mr Hill could be violent when intoxicated - was irrelevant on the State's case (as was the assertion by Ms Rutley that Mr Hill used money as an excuse to make threats). Third, the State's contention that Ms Rutley's evidence was propensity and/or relationship evidence rested on a narrow basis.
As to the last of those points, there is no evidence in Ms Rutley's statement of 8 August 2012 that the abuse and violence that she alleged had been precipitated by arguments during which Mr Hill had become 'irrationally and extremely angry'. Similarly, Ms Rutley does not allege that an argument preceded the assault committed by Mr Hill in August 2010. Rather, her statement of 21 February 2013 suggests that Mr Hill's attack was largely unprovoked and could only explained by his state of intoxication and (according to Ms Rutley) his violent nature. Ms Rutley states in her third statement that Mr Hill said 'so you don't want to sleep with me? I'll show it' (PPB 833, par 5). That statement indicates another possible motivation for the assault but that, again, suggests a tendency or an attitude or conduct that is different to that alleged by the State.
It should be noted in this context that there is little direct evidence that the attack on the deceased was preceded by an argument. Mr Schoepf stated that he heard the deceased yell out the words 'Fuck off' and Mr Hill aditted to the police that the deceased may have said something to that effect. However, those words can be used colloquially to convey a variety of meanings. Otherwise, there is no evidence that Mr Hill argued with the deceased when he went to her property during the night of 31 July 2012 or that he was angry with her.
The other matter on which the State primarily relied is a supposed similarity between the injuries inflicted on Ms Rutley by Mr Hill in the August 2010 assault and the injuries sustained by the deceased. The State's submissions note, by reference to Dr White's reports, that the deceased suffered 'blunt force-type soft tissue injuries to the facial skin including the eye and mouth area'; 'haemorrhages over the left jaw line extending to the ear, extending onto the upper half of the left lateral neck and up to the temple area on the left'; bruising and swelling to the middle aspect of the upper lip; bruising on the arms and back; bruising of the soft tissues of the scalp; bruising to the anterior and inner chest wall including around the ninth rib and between the fourth and fifth ribs; fracture to the ninth rib and extensive bruising to the neck (pars 51 ‑ 58). Dr White states in her letter to the DPP that the soft tissue injury on the left side of the deceased's face was consistent with a person's hand holding the deceased in the area of the throat and lower face.
There are, as the State submitted, similarities in the injuries suffered by Ms Rutley as a result of the assault in August 2010 and the injuries sustained by the deceased. However, I would not characterise the similarities as 'remarkable' in the sense that either the injuries were strikingly similar or that they disclosed a distinctive pattern consistent with a particular type of assault or attack (with the inference that the same person was responsible for inflicting the injuries). There is no evidence that the injuries to the deceased's ribs were caused by a person sitting astride her body and applying force. Further, bruising to the head and upper torso, including to the lips, are common injuries caused by assaults. The fact that the deceased's assailant forcefully held the deceased's throat and lower face is not, in my view, a significant similarity with Mr Hill's assault by choking Ms Rutley.
Accordingly, I do not consider that the similarities between the injuries inflicted on Ms Rutley and the deceased constitute similar fact evidence for the purpose of s 31A of the Evidence Act or evidence of a tendency in Mr Hill. Moreover, I consider that all of the evidence that the State seeks to lead concerning the assault committed by Mr Hill on Ms Rutley in August 2010 lacks significant probative value and that the probative value of the evidence, compared to the risk of an unfair trial, is not such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
0
14
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