Citation: [2021] NSWSC 740
Court: Supreme Court of New South Wales
Date: 8 May 2021
Judge(s): Lonergan J
Background
The accused stands charged with the murder of her domestic partner at Walcha on 2 August 2017. The Crown case is that she faked a suicide by sedating the deceased with drugs, including an animal sedative, and then asphyxiating him by attaching a helium-filled plastic bag to his head.
The trial reached day 24 when a dispute arose over a set of instant messages recovered from the deceased's iPhone. The messages were exchanged between the deceased and two male persons: one set from 2017, and another from 2010.
The Crown did not seek to tender the messages, arguing they were irrelevant to any fact in issue. The accused sought their admission, contending they bore on the deceased's sexuality and its potential relevance to his state of mind.
Legal Issues
- Whether the instant messages between the deceased and male persons were relevant within the meaning of s 55 of the Evidence Act 1995 (NSW)
- Whether, if not relevant, the messages were inadmissible under s 56 of the Evidence Act 1995 (NSW)
Decision
Issue 1: Relevance of the messages to the deceased's sexuality and state of mind
The accused argued that the deceased's sexuality and sexual identity were matters the jury was entitled to consider, particularly in light of evidence concerning Craig Hoy, a gay man who suicided in April 2017 and with whom the deceased may have been close. Lonergan J rejected this reasoning. There was no expert or other evidence establishing any psychological or psychiatric distress on the deceased's part connected to his sexuality (at [21]). To the contrary, the deceased discussed his sexuality openly with close friends, and no treating doctor or counsellor had identified it as a source of depression or difficulty (at [16]).
Issue 2: Relevance to the possibility of suicide
The defence position was that the deceased may have been concealing distress about his sexuality, making the messages relevant to a reasonable possibility that he died by his own hand. Lonergan J firmly rejected the premise that a person who has sexual relationships with both men and women must therefore be psychologically suspect or depressed (at [17]). The inference that the deceased was "hiding" distress was characterised as a baseless assertion founded on homophobic assumptions, without evidentiary support (at [18]).
Issue 3: Relevance to context for the accused's statement to police
A subsidiary argument was that the messages provided context for a remark the accused made to police about the deceased's behaviour. Lonergan J put this to one side, noting the remark went only to the accused's own apparent homophobic attitude, which was not an issue before the jury (at [7]).
Ruling
The messages did not meet the statutory test for relevance. The deceased's sexuality, whatever its nature, was not a fact in issue, and no evidentiary foundation existed to connect it to any psychological distress that might bear on whether he died by suicide (at [19]-[22]).
Orders Made
- Evidence of the instant messages between the deceased and BL in 2017, and AA in 2010, is not relevant in the proceedings and is not admissible.
Key Takeaways
- Under ss 55 and 56 of the Evidence Act 1995 (NSW), evidence that does not rationally affect the probability of a fact in issue is not relevant and cannot be admitted (at [8]-[10]).
- A deceased person's sexuality is not automatically placed in issue in a murder trial simply because the defence raises the possibility of suicide; an evidentiary foundation connecting sexuality to psychological distress is required before such material can be relevant (at [20]-[21]).
- Lonergan J rejected, in clear terms, any assumption that bisexual or sexually exploratory behaviour itself indicates psychological or psychiatric difficulty, describing such reasoning as baseless and rooted in homophobic opinion (at [17]-[18]).
- Where the Crown does not rely on particular material recovered during police investigation, the accused seeking to tender that material must still establish its relevance according to the statutory test; the mere presence of the material in the investigation does not make it admissible (at [4], [22]).
- Inconclusive or vague evidence of a third party's difficulties, here a friend of the deceased who suicided, cannot by itself establish the relevance of messages bearing on the deceased's own sexuality or state of mind (at [15]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 55 and 56
Cases
- Not stated