Citation: R v AKB (No. 4) [2018] NSWSC 1082
Court: Supreme Court of New South Wales
Date: 12 July 2018
Judge(s): Davies J
Background
The accused stood charged in connection with a fatal fire. The deceased was his wife. The Crown sought to lead statements made by the deceased to two friends, recounting incidents in which the accused had allegedly bashed her in front of his family during a trip to Iran, telling her he wanted his family to know he had control over her. The deceased had since died, making her statements hearsay.
The Crown characterised these passages as relationship evidence, intended to counter any defence suggestion that the marriage was harmonious. Defence senior counsel clarified, however, that the defence would not be asserting the relationship was harmonious. The defence case was that the fire was an accident.
The Iran incidents occurred between approximately 2005 and 2007, placing them nine to eleven years before the fire. Two children had been born to the couple in the intervening period, and the family had relocated to Australia.
Legal Issues
- Whether the deceased's out-of-court representations about the Iran incidents satisfied the requirements for admission of hearsay evidence under s 65(2) of the Evidence Act 1995 (NSW)
- Whether the events described in the representations were too remote in time to be relevant as relationship evidence
- Whether, even if probative, the evidence should be excluded under s 137 of the Evidence Act on the basis that probative value was outweighed by prejudicial effect
Decision
Davies J accepted, as a general proposition, that relationship evidence of this kind is both relevant and admissible, citing Wilson v R (1970) 123 CLR 334 and Clark v R [2001] NSWCCA 494. The threshold requirement was that the hearsay representations first satisfy one of the conditions in s 65(2) of the Evidence Act. His Honour was satisfied that s 65(2)(c) was met: the statements were made in confidence to good friends, with no proceedings on foot that could explain any motive to fabricate.
Despite clearing the hearsay threshold, the evidence fell at the relevance hurdle. His Honour drew on Wilson, in which Barwick CJ referred to the "nature of the current relationship," and on R v Frawley, where events occurring between four to six months before a killing were considered appropriate for admission. In the present case, nine to eleven years had elapsed between the Iran incidents and the fire, two children had been born, and the family had moved countries.
His Honour noted that other evidence already before the court suggested the accused had sought to control the deceased in more recent times, but not to the same extreme degree as described in the Iran accounts. Significantly, one of the witnesses had said the deceased never told her about any violence by the accused in Australia. That evidence itself tended to show that the deceased had successfully asserted her independence, which further reduced the probative value of events from a decade earlier.
In all the circumstances, Davies J found the events described were too remote in time to be relevant. Even if some residual probative value existed, it was outweighed by the prejudice to the accused under s 137 of the Evidence Act. Both passages were rejected.
Orders Made
No formal orders were made in this decision. The ruling was an evidentiary one excluding the two disputed passages from the witnesses' statements.
Key Takeaways
- Relationship evidence from a deceased person's out-of-court representations may satisfy the hearsay exception in s 65(2)(c) of the Evidence Act 1995 (NSW) where the representations were made in confidence to friends and there was no apparent motive to fabricate.
- Satisfying a hearsay exception does not automatically render the evidence admissible. The underlying events described in the representations must still be sufficiently proximate in time to be relevant to the current charge.
- A gap of nine to eleven years between the events described and the alleged offence was, in this case, too great to sustain the necessary connection, particularly where other circumstances (children born, relocation, the deceased asserting independence) had intervened.
- Under s 137 of the Evidence Act, even minimally probative relationship evidence may be excluded where the prejudicial effect to the accused outweighs its value.
- The Supreme Court drew a practical contrast with R v Frawley, where events four to six months before a killing were found appropriate for admission, illustrating that temporal proximity is a meaningful consideration in assessing the admissibility of relationship evidence.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 65(2)(c), 137
Cases
- Wilson v R (1970) 123 CLR 334
- Clark v R [2001] NSWCCA 494; (2001) 123 A Crim R 506
- R v Frawley [2000] NSWCCA 340