Citation: R v Gavin John De Beyer [2017] NSWSC 752
Court: Supreme Court of New South Wales
Date: 13 June 2017
Judge(s): Hidden AJ
Background
The accused stood trial for the murder of his wife, who died from a stab wound to the abdomen at their home in Riverwood on 1 February 2016. Later that day, the accused attended Campsie Police Station and told officers that his wife had stabbed herself. The central issue at trial was therefore whether the accused or the deceased inflicted the fatal wound, and the Crown's case on that question was entirely circumstantial.
The Crown sought to rely on a substantial body of relationship evidence to establish a pattern of violence, threats, verbal abuse, and controlling behaviour by the accused toward the deceased. This evidence included observations by two of the couple's children, statements made by the deceased to family members and police, audio recordings of arguments, and a collection of notes and diary entries written by the deceased and found at the home after her death.
Before the trial proper, the court was asked to rule on which parts of this material were admissible as relationship evidence. A separate question of whether some of the same material could also qualify as tendency evidence was deferred to a later stage.
Legal Issues
- Whether the various categories of relationship evidence were admissible as such, or were excluded by the hearsay rule
- Whether the deceased's out-of-court statements to family members and police qualified as admissible hearsay under recognised exceptions
- Whether the deceased's notes and diary entries were admissible under s 66A of the Evidence Act 1995 (NSW), which covers representations of a person's feelings or state of mind
- Whether certain admitted evidence should nonetheless be excluded under s 137 of the Evidence Act, on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Direct evidence. Hidden AJ admitted the observations of the two children, Kalyra and Kye, concerning years of arguments and physical altercations between their parents. The court also admitted evidence from Kye and several police officers about the incident on 7 August 2013, during which the accused followed the deceased and the children by car, twice boarded a bus to demand money, and confronted them at Bankstown railway station in circumstances witnessed by attending officers. The audio recordings made by the deceased on her mobile phone of arguments with the accused were similarly admitted as direct evidence.
Hearsay statements by the deceased. The deceased's statements to her daughter Kalyra (including an account that the accused had tried to drown her in a backyard pond), her conversation with the accused's sister Louise De Beyer at Christmas 2012, and her statement to police about events on 6 and 7 August 2013 were all admitted under existing hearsay exceptions. These statements described the accused's threats, violence, controlling behaviour, and the deceased's fear of him.
Notes and diary entries under s 66A. Section 66A of the Evidence Act provides a hearsay exception for representations made by a person about their feelings, emotions, or state of mind. Hidden AJ held that the written material was admissible primarily to the extent it demonstrated the deceased's feelings about and state of mind regarding the relationship. The court drew a careful distinction between representations of the deceased's emotional state (admissible) and bare assertions of fact (generally not admissible under s 66A, unless necessary to elucidate the feelings expressed). General statements about the accused's physical and verbal abuse and controlling behaviour were allowed to give context to the emotional representations. Two categories of material were rejected outright: the deceased's complaint that the accused resented the birth of their youngest child, and a suggestion that he might be having an affair. Both were peripheral to the central issue and carried significant prejudice, warranting rejection under s 137.
Section 137 balancing. For the evidence admitted over the accused's objection, Hidden AJ found that its probative value outweighed any prejudicial effect, and that any residual prejudice could be addressed through appropriate directions to the jury.
Orders Made
No orders were made in this decision.
Key Takeaways
-
Under s 66A of the Evidence Act 1995 (NSW), a deceased person's written notes and diary entries are admissible to prove their feelings or state of mind about a relationship, but representations of fact in such material are admissible only where necessary to elucidate the emotional content expressed.
-
The Supreme Court confirmed that general statements by the deceased about patterns of abuse and controlling behaviour could be admitted under s 66A as contextual material, without needing to admit every specific factual assertion in the written record.
-
Even where evidence clears the s 66A threshold, the court retains the discretion under s 137 to exclude it if the danger of unfair prejudice outweighs probative value. Here, allegations of an affair and resentment over a child's birth were rejected on that basis.
-
Admissibility of relationship evidence in homicide trials may be determined as a discrete preliminary question, separately from whether the same evidence qualifies as tendency evidence, allowing the trial to proceed in a structured sequence.
-
Out-of-court statements by a deceased victim to family members and police describing a pattern of violence and threats remained available as admissible hearsay under established exceptions, independent of the s 66A analysis.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 66A, 137
Cases
- Conway v The Queen (2000) 98 FCR 204
- Cvetkovic v R [2010] NSWCCA 329
- R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494