R v Hillier [2004] ACTSC 81 (3 September 2004)

Last Updated: 17 September 2004

R v STEVEN WAYNE HILLIER [2004] ACTSC 81 (3 SEPTEMBER 2004)

APPLICATION - application made by DPP to consider admissibility of certain evidence available to be adduced on trial of accused on charge of murder of wife - relationship evidence in this case - motive - admissibility of first-hand hearsay - relationship evidence generally - deceased's expressed fear of the accused - evidence denying access to the deceased's house.

Evidence Act 1995 (Cth), ss 59, 65, 72, 135, 136, 137, 189, 192

TKWJ v The Queen [2002] HCA 46, unreported, 10 October 2002

Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334

R v Barbour [1939] 1 DLR 65

R v Tsingopoulos [1964] VR 676

R v Williams (2000) 119 A Crim R 490

Conway v R [2000] FCA 461; (2000) 98 FCR 204

Frawley v R (1993) 69 A Crim R 208

R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506

Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106

R v Kailis [1999] WASCA 29; (1999) 21 WAR 100

MM [2000] NSWCCA 78; (2000) 112 A Crim R 519

KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221

R v Hissey (1973) 6 SASR 280

R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101

Ballantine (unreported, CCA, 27 June 1978)

R v Blastland [1986] 1 AC 41

Odgers, Uniform Evidence Law, 5^th ed, 2002

No. SCC 37 of 2004

Judge: Gray J

Supreme Court of the ACT

Date: 3 September 2004

IN THE SUPREME COURT OF THE )

) No. SCC 37 of 2004

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

STEVEN WAYNE HILLIER

ORDER

Judge: Gray J

Date: 3 September 2004

Place: Canberra

THE COURT ORDERS THAT:

1. There be no rulings made at this stage.

1. In this matter application is made by the Director of Public Prosecutions (DPP) that I consider the admissibility of certain of the evidence that is available to be adduced on the trial of Steven Wayne Hillier (the accused) on the charge that between the 30^th day of September 2002 and the 2^nd day of October 2002 he murdered Ana Louise Hardwick.

Summary of the prosecution case

2. The summary of the prosecution case and the issues as put by Mr Hastings QC, counsel for the DPP, were as follows -

... the indictment alleges that the accused murdered Ana Louise Hardwick between 30 September 2002 and 2 October 2002. The reason for that lack of precision as to the date of death is that the deceased was last spoken to on the evening of Monday 30 September 2002 and not seen or heard from on the Tuesday with the result that on Wednesday morning alarms were sounded and enquiries made at her home and it was discovered that she was deceased in the bedroom of her home.

The initial observation was that there'd been a fire in the bedroom and some concern then that she may have died as a result of the fire. However a post mortem revealed that she had suffered a neck compression injury consistent with asphyxiation by strangulation rather than death caused by any fact associated with the fire.

There are no eye witnesses to her death or the circumstances surrounding it. The case against the accused comes about because he and the deceased had a long term relationship which went back some 15 years but had ended in about February of 1999 when the deceased left the home in which they lived with their two children.

A conflict arose over the custody and control of the children. There was originally an agreement which was embodied in terms of settlement in the year 2000 whereby the accused became the primary carer of the children and the deceased had access to them most mornings and afternoons and some weekends.

That was a situation which caused some dissatisfaction the deceased [sic] and she then commenced proceedings in the Family Court in 2002 for orders in relation to the custody of her children. There was a hearing between 29 May and 3 June 2002 and a ruling made on 11 June which effectively reversed the previous arrangement and made the deceased the primary carer of the children but provided for access to the accused on a more limited basis.

At the time when the ruling was made, there were no reasons for it available and the accused was successful in obtaining a stay so that the status quo more or less continued and the orders had not been put into effect.

In about the middle of August, ... the reasons became available which in particular were critical of the accused and described him as being controlling and dominating and other unflattering remarks. The accused lodged an appeal on 6 September. But on 20 September, about ten days before the death of the deceased, the stay was lifted.

However, the arrangements were not immediately put into effect because the school holidays were then about to commence and the status quo continued for one week and then into the beginning of the second week during which the deceased was found dead in her bedroom and the new arrangements would have commenced on the following week.

The evidence against the accused it has to be said is not voluminous. The highlight of it is an allegation that a sample taken from the collar of the pyjamas being worn by the deceased when she was murdered displayed a sample of the DNA of the accused and of the evidence to the effect that the pyjamas had been bought since they cohabited and evidence generally about lack of access by the accused to the pyjamas and the deceased although there will also be maybe [sic] issues of contamination and so forth to be dealt with.

There'll be other evidence relating to circumstantial matters which the Crown will point to such as some injuries which the accused claimed to his fingers, giving an explanation which the Crown says was spurious and in a way reflects a consciousness of guilt.

But the evidence of the relationship will be a very important part of the prosecution case for the reasons which have been identified in the voir dire issues document that we have handed up, because it will be alleged that generally during their relationship the accused adopted a dominating and abusive approach towards the deceased.

There'll be evidence that the accused on occasions had been violent towards the deceased. It will be alleged that after separation the accused became quite aggressive and difficult and jealous and in particular in relation to the custody of the children the accused was difficult and aggressive and very determined to secure custody of the children.

And the evidence will also include expressions of fear by the ... deceased, which included discussions about arranging for a safe house to which she could flee from the accused and expressions to the effect that because of the custody dispute it can only end when one of them ended up in a box and so forth.

The nature of the application

3. This is not a matter which strictly falls within s 189 of the Evidence Act 1995 (Cth) which prescribes the manner in which a voir dire hearing is to be held in the circumstances set out in that provision. There is, in the present case, no requirement to find that a particular fact exists before determining whether evidence should be admitted or can be used. Nor does the application raise issues which might call for the exercise of leave, permission or direction under s 192 of the Evidence Act. Nevertheless, the holding of a preliminary hearing in the present case, and an indication of my views, may have some effect on the manner of presentation of the prosecution case and, perhaps, minimise the risk of the trial miscarrying by the adducing of evidence in respect of which I have indicated a tentative view about its inadmissibility. Whilst there may be no express provision for a procedure like this in the ACT Supreme Court, there may be benefits in adopting a flexible approach to such questions as long as the provisional nature of such an approach is recognised (TKWJ v The Queen [2002] HCA 46, unreported, 10 October 2002, Gleeson CJ [11], McHugh J [87], Hayne J [114] and cf Gaudron J [44] and [45]). In this case, counsel for both parties indicated that it would be of assistance if I indicated a view of the arguments presented in respect of the evidence which the prosecution was considering that might be led. I am prepared to do so, but I bear in mind the reservation expressed by Gaudron J in TKWJ (supra) at [43] -

Although it may be appropriate in some cases to give an `advance ruling' as to a matter in respect of which the Evidence Act requires leave, permission or direction, it is to be remembered that counsel ultimately bears the responsibility of deciding how the prosecution and defence cases will be run. Thus, it is that `advance rulings', even if permitted by a provision of the Evidence Act requiring leave or permission, may give rise to a risk that the trial judge will be seen as other than impartial. Particularly is that so in the case of advance rulings that serve only to enable prosecuting or defence counsel to make tactical decisions. If there is a risk that an `advance ruling' will give rise to the appearance that the trial judge is other than impartial, it should not be given.

I consider that such a reservation is appropriate to the exercise that I am undertaking here.

The relationship evidence in this case

4. The evidence that the prosecution proposed to adduce concerning the relationship between the accused and the deceased was summarised thus -

1. That it was a general characteristic of the relationship that the accused was dominating and abusive towards the deceased.

2. That the accused was violent towards the deceased:

(a) generally;

(b) specifically with regard to:

(i) hitting the deceased to the jaw;

(ii) an incident with the milk truck;

(iii) an incident with the yoghurt;

(iv) an incident forcing the head of the deceased into the hall wall;

(v) other specific assaults.

3. That after separation the accused was antagonistic and jealous in relation to the deceased.

4. That the accused and the deceased were in conflict over the custody of their children:

(a) there were contested proceedings in the Family Court;

(b) the accused was difficult and aggressive in relation to arrangements for the custody of the children;

(c) the accused was difficult and aggressive in relation to clothing and toys for the children;

(d) the accused threatened the deceased that she would never have custody of the children;

(e) the accused reacted angrily and emotionally to the decision of the Family Court on 20 September 2001 concerning custody of the children;

5. That the deceased was in a state of fear of the accused:

(a) generally;

(b) because the accused may obtain a key enabling him to access her residence;

(c) discussion of arrangements for a safe house to which she could flee from the accused.

5. The prosecution put forward three bases for the admission of this evidence. The first is the motive that the prosecution say can be made out in the circumstances of the custody dispute between the accused and the deceased, where the accused was about to lose the custody of his children. Next, the prosecution say that the evidence concerning these matters (and the evidence generally) is necessary to avoid an unrealistic atmosphere of the dealings between the couple. Then it is said that the estrangement and the deceased's fear of the accused was relevant to the circumstances arising from the accused's DNA, said to be found on the collar of the deceased's pyjamas when her body was found, as evidence to "negative any prospect that it came to be there, otherwise as a result of familiarity or innocent contact".

Motive

6. Relationship evidence may well be relevant to establish an accused's motive for the crime. In Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 at 339, Barwick CJ observed -

No doubt in the text books it is the inference of motive which is said to be open on evidence of bad feelings between the parties or of the terms on which they have lived. See Hale, Pleas of the Crown, vol 1, p 451, Halsbury's Laws of England, 3^rd ed, vol 14, par 491, Phipson on Evidence, p 151. But it is clear that such evidence may also provide material on which the fact of the killing may be inferred. See for example per Lord Atkinson in R v Ball [1911] AC 47 at 68; [R v Barbour] per Sir Lyman Duff [1939] 1 DLR at 67. It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal.

7. An important caveat, however, on the extent to which such evidence can be given is the qualification expressed in R v Barbour [1939] 1 DLR 65 in the passage referred to by Barwick CJ where Sir Lyman Duff said at 67 -

But I think, with the greatest possible respect, it is rather important that the Courts should not slip into a habit of admitting evidence which reasonably viewed cannot tend to prove motive or to explain the acts charged merely because it discloses some incident in the history of the relations of the parties.

8. The prosecution put their case on motive as -

1. To murder the deceased in order to ensure that she did not have custody of the children, given that the accused had just been unsuccessful in the Family Court, lacked means to run an appeal, and was unlikely to be successful on appeal;

2. Anger and frustration at losing in the Family Court;

3. Anger and frustration at the criticism of him in the Family Court judgment;

4. General hostility towards the deceased.

9. The evidence supporting the allegations as to the general characteristic of the relationship being one of domination and abuse by the accused to the deceased and as to the violence allegedly exhibited by the accused could only be said to be very marginally relevant to establishing the motive that the prosecution have formulated. The suggested motive is, after all, directed to the prospect of losing custody of the children. The controlling behaviour which might be said to be established by this evidence, the accused's poor opinion of the deceased and his anger toward her, may perhaps help to explain the reaction to the Family Court order, but they do not establish it. They are matters which, if proved, do not reflect favourably on the accused and can only, in a speculative way, explain why his personality would cause him to be, subjectively, more affected by the Family Court events than, perhaps, another person. A further aspect is that the incidents and general expressions of opinion that comprise this evidence are related generally to the time before the couple separated. Not only do they not cast any real light on the motive assigned by the prosecution, there is also the remoteness from the event having regard to the fact of separation almost three years previously (cf R v Tsingopoulos [1964] VR 676).

10. On the other hand, instances after the separation of the accused's attitude to the deceased and his behaviour related to the subject of the children after June 2000 when the terms of settlement in relation to the care of the children was agreed, are apparently relevant to the particularised motive. A number of instances relate to direct observations of the accused and conversations with him. Subject to the prosecution in each instance making good its relevance to motive, my tentative view is that evidence of this nature would be admissible.

Admissibility of first-hand hearsay

11. Apart from the evidence of observations of the accused and statements made by him, some of the witnesses are in a position to depose to representations made by the deceased to them concerning the same or similar subject matter. In circumstances where a person is not available to give evidence as to a fact that the person asserts and it is sought to rely upon the representation as evidence of the truth of that fact, the evidence may be admissible as an exception to the hearsay rule set out in s 59 of the Evidence Act. That will be so if that statement fulfils the requirements of s 65 of the Act. That section relevantly provides -

65(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

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

...

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

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

... [My emphasis]

12. In the present case, the representations relied upon are of a general nature often about events or observations spoken of by the deceased at times that, in my view, could not be said to fulfil the `shortly after' requirement in the section. In so doing, I follow the approach taken by the Full Court of the Federal Court (Whitlam, Madgwick and Weinberg JJ) in R v Williams (2000) 119 A Crim R 490 at 502 -

It seems that the exception set out in s 65(2)(b) was intended to restate and reform the common law res gestae exception to the hearsay rule, ensuring that an overly narrow approach adopted in cases such as Bedingfield [R v Bedingfield (1879) 14 Cox CC 341] would be avoided. The terms of s 65(2)(b) indicate that the `approximate ... contemporaneity' approach pre-figured in Ratten [Ratten v The Queen [1972] AC 378] is to be preferred to the exact contemporaneity apparently required by Vocisano v Vocisano [(1974) [1974] HCA 14; 130 CLR 267], thus disposing of any ambiguity that may exist at common law. The Australian Law Reform Commission (ALRC) proposal, which led to the provision, took the case law as a starting point for its considerations:

"The proposal includes an exception for representations made `[when] or shortly after' the events referred to in it. A formula is used which takes up the suggestions of the Privy Council in Ratten's case. It directs attention to the question of the likelihood of fabrication."

Thus, it is principally a concern to exclude concocted evidence that informs the meaning of the phrase `shortly after'. As noted by Sperling J in R v Mankotia [[1998] NSWSC 295] at [10], s 65(2)(b) ought not be regarded as simply importing a test of:

"... reliability at large. It is a narrower test ... [I]t is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial."

For these reasons, it would be a mistake, in determining whether a statement has been made `shortly after', to over-emphasise such matters as whether the events in question were `fresh' in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact.

The further qualification that the representation must have occurred in circumstances that make it unlikely that the representation is a fabrication depend on a consideration of those circumstances but, unless the `shortly after' qualification is met, it is unnecessary to do so. In the event that a representation concerning a relevant fact meets the qualifications, the circumstances as a whole will also need to be considered to determine whether ss 135 and 137 of the Evidence Act apply to require the court to refuse to admit the evidence.

13. No specific argument was put to me concerning the admissibility of evidence said to fall in the category of s 65(2)(c) of the Evidence Act as being `made in circumstances that make it highly probable that the representation is reliable'. The diverse and broad representations sought to be relied upon in this case tell against this qualification being made out. I would adopt, generally, the approach taken by the Full Court of the Federal Court (Miles, von Doussa and Weinberg JJ) in Conway v R [2000] FCA 461; (2000) 98 FCR 204 at [146] - [147] -

The requirement in s 65(2)(c) of the Act that it be `highly probable' that a representation be `reliable' in order to be admissible is an onerous one. It is easy to see why that should be so. Section 65(2)(c) has the potential to operate unfairly against an accused person. This particular exception to the hearsay rule was not recommended by either the Australian Law Reform Commission or the New South Wales Law Reform Commission. Treating `reliability' alone as the basis for admissibility, represents a radical departure from the principle that hearsay evidence, no matter how reliable it may appear to be, is inadmissible unless it falls within a recognised exception to the hearsay rule.

It is true that in Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558 Mason CJ favoured the development of an exception to the hearsay rule based solely upon `reliability'. However, the High Court eschewed that approach in Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1, and there are plainly dangers associated with it.

See, too, Williams (supra) at 504 [55].

The relationship evidence generally

14. It was submitted that apart from the relevance of the relationship evidence to motive, the evidence was generally admissible as `to look at the dealings between the two in a vacuum is unrealistic so that one is entitled therefore to put before the jury their relationship'. Reliance was placed on what Menzies J said in Wilson (supra) at 344 -

Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.

In Wilson, the accused was present when a shotgun discharged killing her. The accused claimed that he had not caused the gun to discharge but that it had done so accidentally perhaps by a dog jumping on the bale of hay where it had been placed. Evidence of quarrels and enmity between the couple were relevant to the issue of accident or deliberate act. I make the point that it was not sought to use the evidence to infer that the accused was present at the scene of the crime.

15. The necessity to identify with some precision the issues to which evidence of relationship is directed was the subject of comment by Gleeson CJ in Frawley v R (1993) 69 A Crim R 208 at 220 -

One of the difficulties affecting consideration of relationship evidence is that the concept of relationship is vague. In a particular case, such as the present, it may be necessary to identify with more precision what is in question. Frequent and serious quarrelling between a couple, of a kind that goes beyond what Menzies J referred to in Wilson as ordinary difficulties and disagreements, may be relevant to whether one intended to kill the other, or to some other issue in a criminal trial. ... Whether or not it is admissible may depend upon the circumstances, and it is not particularly helpful to begin with an assumption that, in a case of homicide involving a man and a woman, evidence of their relationship is admissible. In this case I find it preferable to avoid the label `relationship evidence' and to seek to describe more accurately and more particularly the subject matter.

16. In R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 at 562 [99], Heydon JA commented -

There is a blessed vagueness in the expression `relationship evidence', and it is very widely used, but it is not a satisfactory expression. Accordingly there is force in Gleeson CJ's preference for considering whether the evidence was direct evidence of any fact relevant to a fact in issue.

Heydon JA went on to discuss the approach of Callinan J in Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 at 168 [181] - 169 [182]. Callinan J said -

I do not accept that non-specific highly prejudicial evidence may be led by the prosecution, and juries told that it might provide `part of the essential background' [B v The Queen [1992] HCA 68; (1992) 175 CLR 599 at 610, per Deane J] against which the other evidence is to be evaluated.

I would, with respect, therefore reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible). If such evidence is to be received it must owe its admissibility to some, quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive. There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such.

Heydon JA also cited Gaudron J in Gipp (supra) at 112 [11] - 113 [11] and Ipp J in R v Kailis [1999] WASCA 29; (1999) 21 WAR 100 at 150 [192]. As Heydon JA observed, these remarks were made in the context of a case involving sexual offences. In KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 at 233 [31], McHugh J said -

By reason of the divided reasoning of the majority in Gipp, it cannot yet be said that evidence of uncharged acts of sexual conduct is no longer admissible to prove the relationship between the parties. Until this Court decides to the contrary, courts in this country should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have done for the best part of a century. But that said, trial judges will sometimes, perhaps often, need to warn juries of the limited use that can be made of such evidence and will have to give a propensity warning concerning it. (T (1996) 86 A Crim R 293 at 299.)

(See, too, R v MM [2000] NSWCCA 78; (2000) 112 A Crim R 519 at 539-540 [47] per Powell JA, Hulme and Dowd JJ.)

17. However, admissibility of uncharged sexual acts to explain the nature of the relationship between a complainant and accused where the charges are of a sexual nature does not, in my view, justify the admission of evidence generally concerning the relationship between victim and accused as general background in respect of charges that are not of a sexual nature. The expressions of view of Callinan J and Gaudron J have a degree of pertinence to relationship evidence which is sought to be adduced generally and is not directed to a specific issue in a case.

18. The actual approach that Heydon JA took to the impugned evidence in Clark (supra) was to determine the relevance of the evidence to what he identified as the issue in that case. A distinguishing feature from this case is that there was an obvious issue in what the accused in Clark maintained was his relationship with the deceased. In Clark, the accused told police that the dealings and mutual attitudes between him and the deceased were cordial. The evidence of other witnesses, however, demonstrated a tense and violent relationship. This case does not, at this stage, suggest that there will be such a conflict of evidence. In any event, if evidence is admitted concerning the motive identified by the prosecution, that evidence will go quite some distance to avoid creating a misleading or artificial picture or prevent the issues from being considered in a `vacuum' (Wilson at 344, see [14] above).

19. There is, in the present case, also no issue of what might have happened at a time when the accused had a proved or admitted opportunity to kill the deceased. In Clark, the issue for the jury was to assess what happened on a drive where the accused admitted picking up the deceased and which was the last known time that she was seen alive. A further important distinguishing factor in Clark was the antagonism of the deceased towards the accused. The fact that the deceased threatened to harass the accused and that she blamed all her problems on him, taken together with the accused's proven attitude to her, was relevant to the issue of whether the drive ended by the accused killing her. That was the issue identified by Heyden JA in Clark at 577 [144] where he said -

The impugned evidence was relevant because, in the light of the other evidence, it could rationally affect the assessment of the probability of the existence of a fact in issue. The fact in issue was whether the car journey on the morning of 7 February 1999 ended in the killing of the deceased by the appellant. Their mutual dealings and attitudes, as illustrated by the impugned evidence and by inferences from it, could rationally affect the assessment of the probability of such a killing.

20. The opportunity itself was not in issue. In the present case, the evidence of what had transpired when the accused and the deceased were a couple does not assist in assessing the probability that the accused killed the deceased. In R v Hissey (1973) 6 SASR 280, evidence of a violent relationship was held admissible not only to prove intent but also the fact of the crime. The Court (Bray CJ, Hogath and Mitchell JJ) said in relation to the admissibility of allegations of previous violence (at 288-289) -

Evidence of this nature is not to be led as evidence of bad character or of a tendency to use violence on the part of the appellant. Such evidence is admissible for the purpose mentioned by the learned trial Judge, namely that of showing the relationship existing between the appellant and the deceased (Wilson v The Queen [supra]). We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living. If evidence of this nature were to be excluded as being technically inadmissible, then equally it would be technically inadmissible for evidence to be tendered to the jury which might be favourable to an accused person, for example of a man having lived with his wife on terms of affection and harmony over a long period of years; and we think that such evidence would clearly be relevant and indeed important. When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime: R v Ball [1911] AC 47, per Lord Atkinson at p 68; Wilson v The Queen [supra], per Barwick CJ at p 339. So here the evidence was admissible not only to prove malice aforethought, but also to prove that the appellant was responsible for the death of the deceased. The jury evidently declined to give effect to it for the former purpose, since they acquitted the appellant of murder, but they were at liberty to use it for the latter.

However, that case was also one where there was an admitted opportunity for the accused to have killed the deceased in the flat that they occupied together. There was also evidence of a violent dispute implicating the accused and apparently emanating from the flat at times when the fatal blow to the deceased could have occurred.

21. In R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101 at 107, Dunford J made the point that relationship evidence could be admissible as to the identity of the perpetrator -

It was submitted that even if such evidence of the relationship were admissible in cases where the issue is such as intention to kill or self-defence etc, it is not admissible where, as here, the issue is the identity of the killer, but in Wilson itself the issue was whether the accused had fired the gun (or whether it had discharged accidentally perhaps when a dog jumped on the bale of hay on which it was resting) and R v Hissey and R v Ballantine were also cases where the identity of the killer was in issue.

But in the cases of Hissey (supra) and Ballantine (unreported, CCA, 27 June 1978), the evidence was adduced primarily to establish the accused's motive. The evidence in Serratore (supra) only became admissible in light of a different version of the nature of the relationship advanced by the accused in that case and the evidence that was given in the case of opportunity namely, an arrangement that the accused and the deceased were to meet on the night that she was killed. What Dunford J said about the evidence was as follows (at 106) -

Here the evidence, if accepted by the jury, tended to show that the relationship between the parties was an extremely obsessive, jealous and dominating one on the part of the appellant, peppered with incidents of physical violence, not showing a tendency to violence in the sense of a tendency to kill (it was not tendered or admitted on that basis), but as showing the degree of domination and obsessiveness which the appellant brought to the relationship. It was not what might be described as an ordinary boyfriend/girlfriend relationship with its occasional ups and downs and odd verbal disagreements. In addition the evidence, if accepted, disclosed that the deceased had previously tried to end the relationship, that the appellant had made it difficult but she had finally resolved to do so and the return of mementos was to mark this event.

In addition, there was other evidence: of his accusing her (apparently falsely and without any evidence to justify the accusation) of resuming a relationship with a former boyfriend, his humiliating her in front of her parents by reference to an abortion; and of statements of intention to kill or otherwise harm or humiliate her in his statements to Bassam Radwan and Manolis Kasdaglis; and of the threats allegedly made to the deceased and her family at the Burwood Court on 18 November 1994, including the statement to Radwan as late as February 1995 that he still intended to `do it'. This evidence was clearly admissible and not objected to, at least when it was given, and the so-called `relationship' evidence was necessary to put such evidence in its proper context. [My emphasis]

In the present case, there is no separate body of evidence of the nature set out as `clearly admissible or not objected to' that requires context to be given to it.

The deceased's expressed fear of the accused

22. The prosecution also seeks to adduce evidence of what is said to be fear of the accused by the deceased. This evidence overlaps to some extent that which the prosecution would seek to call in respect of motive. This evidence is also said to be relevant to negative the prospect that there would be innocent contact which might explain the presence of the accused's DNA on the deceased's pyjama collar. It is further put that if evidence concerning that fear be relevant, then the facts that engender it may also be proved in evidence. Support for that latter proposition is said to be provided by what Gleeson CJ said in Frawley. In that case, the deceased left a note expressing her fear of the accused and her apprehension of violence. Gleeson CJ said (at 223) -

The fact that the deceased feared the appellant does not tend to prove that he killed her, or that he acted towards her with a certain intent. What would tend to prove that would be evidence that the fear was well-founded on the basis of past happenings, but that is the very matter which the document cannot be used to prove.

23. That passage is making the point that expressions of fear by the deceased in respect of an accused does not prove either the act or intent although the acts which engender that fear might. In the present case, I have already expressed the view that evidence of domination, abuse and violence before the couple separated at best is only marginally relevant to motive and, in any event, is too remote from the issue. It also does not achieve any greater significance by an attempt to associate the evidence of domination, abuse and violence during the time they were living together with what is said to be the deceased's general fear of the accused after separation and, in my view that evidence could not be admissible on that basis either.

24. One aspect of the deceased's expression of fear of the accused arises in the context of the accused's reaction to the Family Court decision. That evidence relates to the things said by the deceased to her long-time friend, Judith Vaughan. The evidence is that of a telephone call that the deceased made to Judith Vaughan apparently on the day that the Family Court decision relating to the custody of the children was handed down. The evidence could well be admissible as to the facts represented in it (s 65 Evidence Act) as well as contemporaneous representations about the deceased's feelings and state of mind (s 72 Evidence Act). Each of those aspects may well be relevant to the motive that the prosecution seek to establish but I am not prepared to accept that they go to the issue negativing innocent contact between the accused and the deceased.

25. Otherwise, I do not regard the expressions of fear and concern for her safety expressed by the deceased to the various witnesses as having the probative value of negativing innocent contact for which the prosecution contends or in any other way tending to prove that the accused killed the deceased or that he acted toward her with a certain intent (see Gleeson CJ in Frawley at 223). Whilst s 72 of the Evidence Act might permit evidence to be given of the deceased's fear of the accused as recounted to other persons, that only applies `when the state of mind evidenced by the statement is either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial' (R v Blastland [1986] 1 AC 41 at 54).

26. That would rule out evidence of a number of the representations which the prosecution would seek to adduce in reliance upon s 72 of the Evidence Act. I would only make the further point that although s 72 provides that the hearsay rule does not apply to contemporaneous representations about a person's `health, feelings, sensations, intention, knowledge and state of mind', it does not permit the admission of every expression of view of the person making the representation. As Odgers, Uniform Evidence Law, 5<sup>th</sup> ed, 2002, p 195 notes, `This provision did not appear in the ALRC proposals. The issue was thought to be covered by confining the definition of `hearsay' to intended assertions and by the firsthand hearsay proposal.' In Clark, Heydon JA observed at 580 [158], `Section 72, it must be remembered, is significantly wider than the equivalent common law rules in force at the time when Wilson, Ratten and Frawley were decided.' He does not elaborate on the extent of that width. Nevertheless the requirement that it be a `contemporaneous representation' is a significant constraint which may operate to exclude gratuitous expressions and observations of opinion about the representor's feelings and state of mind which do not fulfil the contemporaneous requirement that the section requires.

Evidence denying access to the deceased's house

27. The evidence which the prosecution would seek to adduce which evidences the deceased's concern that the accused may obtain a key enabling access to her residence stands separately from the observations I have made as to the evidence related to the deceased's fear of the accused. That evidence I would regard as open to the prosecution to adduce to meet an hypothesis that the accused could have innocently accessed the deceased's premises in rebuttal of a possible innocent explanation for the DNA evidence. But it would need to be limited to that purpose and the evidence must still meet the s 65 and s 72 tests of the Evidence Act of `shortly after' and `contemporaneous' as well as not invoking ss 135, 136 or 137 of the Evidence Act.

28. As I observed at the outset, what I have said can be no more than an indication of views that I tentatively hold. It is not appropriate that I make any rulings, having regard to the generality of what has been presented, but I will deal with the particular issues either, prior to the trial or during it, as the parties propose.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 3 September 2004

Counsel for the Prosecution: Mr P Hastings QC with Ms P de Veau

Solicitor for the Prosecution: Director of Public Prosecutions (ACT)

Counsel for the Accused: Mr F J Purnell SC with Mr R Livingston

Solicitor for the Accused: Pamela Coward & Associates

Dates of hearing: 16 - 18 August 2004

Date of judgment: 3 September 2004