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Supreme Court 26 February 2015

R v Do (No. 2)

[2015] NSWSC 111

Homicide
CRIMINAL LAW MURDER EVIDENCE RELATIONSHIP EVIDENCE EVIDENCE HAVING PROBATIVE VALUE NO UNFAIR PREJUDICE

Citation: R v Do (No. 2) [2015] NSWSC 111
Court: Supreme Court of New South Wales
Date: 26 February 2015
Judge(s): Davies J

Background

The accused stood trial for the murder of the deceased, who had been his partner or spouse. The Crown sought to lead firsthand hearsay evidence under s 67 of the Evidence Act 1995 (NSW), broadly described as relationship evidence. The evidence consisted of conversations the deceased had with various witnesses about two distinct matters in her relationship with the accused.

The first matter concerned a prenuptial agreement: the deceased had repeatedly told witnesses she wanted the accused to sign such an agreement, but he refused, saying he did not want involvement in the family's financial affairs. The second matter concerned the accused's visa status in Australia, including evidence that the deceased was his visa sponsor and that there had been discussions about sending him back to the United States.

The defence objected to both categories of evidence, arguing under s 137 of the Evidence Act 1995 (NSW) that any probative value was outweighed by the danger of unfair prejudice to the accused.

  • Whether evidence of discussions about a prenuptial agreement between the accused and the deceased was admissible as relationship evidence, or should be excluded under s 137 of the Evidence Act 1995 (NSW).
  • Whether evidence of the accused's visa status and the deceased's role as his sponsor was admissible as relationship evidence, or should similarly be excluded under s 137.
  • Whether portions of a recorded interview (ERISP) touching on the prenuptial agreement should be excluded on the basis that the questioning was unfair.

Decision

Prenuptial agreement evidence

Davies J found that the prenuptial agreement evidence had genuine probative value. The deceased had raised the matter repeatedly with multiple witnesses, suggesting it was a significant source of tension on her side of the relationship. His Honour applied the principle from Norman v R [2012] NSWCCA 230 that relationship evidence must do more than merely disclose aspects of the parties' relationship; it must explain or resolve an issue by placing the alleged events in their true context. The declining state of the relationship was such an issue, and the prenuptial dispute was one contributing factor to that decline.

The defence argued that admission would cause unfair prejudice because the jury might reason the accused refused to sign the agreement with an eye to killing the deceased. Davies J rejected this. The evidence emphasised the deceased's irritation rather than any hostile attitude on the accused's part, and the Crown put the evidence forward only as one of several factors contributing to relationship tension, not as a direct link to the killing. The evidence was admitted. The challenge to the ERISP passages on fairness grounds was not upheld on the material set out in the judgment.

Visa status evidence

Davies J accepted that the visa evidence had less probative value than some of the other relationship evidence but declined to excise it from the broader picture of the relationship. Significantly, his Honour noted that the evidence could actually support an inference favourable to the accused: because his continued residence in Australia depended on the deceased's sponsorship, the jury might reason he had a motive not to harm her. On that basis, Davies J found no real risk of unfair prejudice and admitted the evidence.

Miscellaneous passages

Several individual paragraphs from witness statements were dealt with separately. One paragraph was rejected as conclusionary. Others were not objected to if led in admissible form. One highlighted passage was found to provide relevant evidence about the relationship but required reformulation before it could be led.

Orders Made

• Evidence regarding the ERISP questions about the prenuptial agreement is admitted
• Evidence regarding the visa arrangement is admitted

Key Takeaways

  • Relationship evidence in a murder trial is not admissible simply because it reveals aspects of the parties' dynamic; under Norman v R, there must be a specific issue that the evidence explains or resolves by placing the alleged events in their proper context.
  • Probative value and unfair prejudice under s 137 of the Evidence Act 1995 (NSW) require close, fact-specific analysis: evidence that appears prejudicial at first may carry little actual prejudicial weight depending on how it bears on each party's conduct.
  • Where relationship evidence concerns multiple sources of tension, the Supreme Court here treated those sources as an integrated whole, finding it artificial to excise individual topics such as a prenuptial dispute from the broader picture of a deteriorating relationship.
  • Evidence that appears capable of supporting an inference adverse to the accused may, on closer analysis, also support an inference in their favour, reducing any finding of unfair prejudice.
  • Hearsay statements from a deceased person about relationship tensions are capable of admission as relationship evidence where they have identifiable probative value and are led in admissible form.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 67 and 137

Cases
- Norman v R [2012] NSWCCA 230
- Clark v R [2001] NSWCCA 494; (2001) 123 A Crim R 506
- Wilson v R (1970) 123 CLR 334
- Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 417 (cited in Norman)
- DJV v R [2008] NSWCCA 272 (cited in Norman)