Citation: R v Maglovski [2012] NSWSC 1378
Court: Supreme Court of New South Wales
Date: 6 November 2012
Judge(s): Beech-Jones J
Background
The accused faced a single count of murder in relation to the death of his wife on 8 October 2011. He pleaded not guilty to murder but guilty to manslaughter, leaving provocation as the only live issue at trial. In his police interview, the accused stated that he had punched and stabbed his wife after she told him she wanted a divorce and spat in his face.
The Crown sought to call the deceased's daughter to give evidence of a conversation she had with her mother approximately two weeks before the death. In that conversation, the mother reportedly told her daughter that the accused had attempted to strangle her in her sleep, and that she was frightened of him. The accused denied any such incident.
The admissibility of this evidence was determined on a voir dire (a hearing held in the absence of the jury to resolve an evidentiary question before the main trial continues).
Legal Issues
- Whether the deceased's out-of-court statement to her daughter was admissible under s 65(2)(b) of the Evidence Act 1995 (NSW), as a representation made shortly after the asserted fact in circumstances making fabrication unlikely
- Whether the statement was admissible under s 65(2)(c), as a representation made in circumstances making it highly probable that it was reliable
- Whether, even if admissible under s 65, the evidence should be excluded under s 137 because its prejudicial effect on the accused would outweigh its probative value
Decision
Issue 1: Section 65(2)(b)
Beech-Jones J rejected the Crown's reliance on s 65(2)(b). The alleged strangulation was said to have occurred around the time the parties returned from a trip to Macedonia in approximately June 2011, whereas the statement to the daughter was made around late September 2011. A lapse of approximately three months was too great to satisfy the requirement that the representation be made "shortly after" the asserted fact.
Issue 2: Section 65(2)(c)
The court accepted that s 65(2)(c) imposes a markedly more onerous test than s 65(2)(b), requiring the circumstances to make it "highly probable" that the representation is reliable, not merely that it was unlikely to be a fabrication. Beech-Jones J acknowledged some reason for caution given that allegations made by one party against another during a marriage breakdown can be unreliable. However, the context was persuasive: the mother had avoided the topic in front of her husband during an argument, only disclosing it privately to her daughter a few days later at the daughter's prompting. The court was satisfied that s 65(2)(c) was made out.
Issue 3: Section 137 exclusion
Despite satisfying s 65(2)(c), the evidence was excluded under s 137. Beech-Jones J found that an allegation, recounted by the accused's own daughter, that he had previously attempted to strangle his wife would be highly prejudicial to him before any jury. Against that significant prejudice, the court assessed the probative value as minimal. The statement was a bare allegation stripped of any surrounding context, including what preceded the incident, how far any attempt developed, and what, if any, injuries resulted. An earlier loss of self-control was not in itself inconsistent with a provocation defence, and the Crown had conceded the evidence could not establish premeditation. The probative value on the sole issue of whether the accused lost self-control on 8 October 2011 was insufficient to justify admission.
Orders Made
- Pursuant to s 137 of the Evidence Act 1995, leave to adduce evidence from the deceased's daughter as to a statement made to her by the deceased is refused.
Key Takeaways
- Under s 65(2)(b) of the Evidence Act 1995, a gap of approximately three months between an alleged incident and a representation about it will not satisfy the requirement that the representation was made "shortly after" the asserted fact.
- Section 65(2)(c) sets a considerably higher bar than s 65(2)(b): the circumstances must make it "highly probable" that the representation is reliable, not merely unlikely to be fabricated. The court treated these as conceptually distinct thresholds.
- A representation can satisfy s 65(2)(c) where it was made privately between a mother and daughter, in circumstances where the mother had deliberately avoided the subject in front of others, and was only disclosed at the daughter's direct prompting.
- Even where hearsay evidence clears the s 65 gateway, s 137 requires exclusion where prejudicial effect significantly outweighs probative value. Here, the absence of any contextual detail surrounding the alleged prior incident substantially diminished the evidence's probative weight on the live issue of provocation.
- A prior incident of alleged violence is not necessarily inconsistent with a provocation defence: what would undermine provocation is evidence of planning or premeditation, not evidence of an earlier loss of self-control.
Legislation and Cases Referenced
Legislation
- - Evidence Act 1995 - s 65, s 135, s 137
Cases
- - Conway v R [2000] FCA 461; 98 FCR 204