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Supreme Court 1 September 2023

R v So (No 2)

[2023] NSWSC 1052

Homicide
EVIDENCE ADMISSIBILITY HEARSAY TENDENCY EVIDENCE LATE NOTICE TERM RELATIONSHIPS, ENGAGE IN SHORT

Citation: R v So (No 2) [2023] NSWSC 1052
Court: Supreme Court of NSW
Date: 1 September 2023
Judge(s): Ierace J

Background

The accused stood trial on a charge of murdering a man at a rural property at Elong Elong between 14 and 15 June 2016. The alleged victim disappeared after the accused, who had travelled from New Zealand at his invitation, stayed at his property. The Crown's case was that the accused killed him after he told her she could not remain on an ongoing basis, having led her to expect a long-term relationship.

The accused did not concede that the alleged victim was deceased, so the judgment refers to him throughout as the "alleged victim." The trial proceeded before a judge alone at Dubbo.

Two contested evidentiary issues arose before and during the trial. The Crown sought to admit out-of-court statements attributed to the alleged victim as exceptions to the hearsay rule. The Crown also, by way of late notice, sought to adduce tendency evidence to establish that the alleged victim had a pattern of disavowing long-term relationships while falsely promising them to women he invited to stay with him.

Legal Issues

  • Whether statements made by the alleged victim to various witnesses were admissible as first-hand hearsay under s 65(2)(c) of the Evidence Act 1995 (NSW), on the basis that it was "highly probable" the representations were reliable
  • Whether a statement made by one witness about the alleged victim's attitude to relationships was admissible under s 66A as a contemporaneous representation
  • Whether the Crown's late-served tendency notice should be excused, and whether the Crown's proposed evidence met the threshold of "significant probative value" required by s 97 of the Evidence Act
  • Whether s 101(2) of the Evidence Act (which requires tendency evidence probative value to outweigh prejudicial effect) applied where the tendency related to the alleged victim rather than the accused

Decision

Issue 1: Hearsay admissibility under s 65(2)(c)

Ierace J admitted the statements made by the alleged victim to a long-standing friend (Susan Carter) about his intentions regarding the accused's impending visit. The court found those representations were made in circumstances making it highly probable they were reliable, given a 30-year friendship and the high level of trust that implied (at [29]). The accused's submission that the alleged victim may have downplayed his romantic interest in the accused to preserve his chances with Ms Carter was rejected as unsupported by the voir dire material (at [28]).

Statements attributed to the alleged victim by his sister and one of his sons, concerning a Russian female who had recently overstayed her welcome, were also admitted under s 65(2)(c). The court reasoned that representations made to close family members carry considerable weight as to reliability, and the similar content of both accounts reinforced that conclusion (at [32]). The fact that the email extracts concerning a woman named "Tatjana" did not conclusively confirm or deny whether a Russian female had visited was not determinative (at [31]).

The court admitted contested passages from a neighbour's statement (Sandra Weavers) under s 65(2)(c), finding the alleged victim's candid statements about women attending his home for one to two days for sexual services were reliable in part because they were potentially against his interests (at [35]). However, his remark that his vehicle was his "only woman" was excluded from the tendency analysis as a likely deliberate overstatement (at [35]). Two specific passages from the neighbours' statements (part of Gary Weavers' statement and one paragraph of Sandra Weavers' statement) were excluded as second-hand hearsay and therefore inadmissible (at [34], [36]).

Issue 2: Tendency evidence and late notice

Ierace J found no prejudice to the accused arising from the Crown's failure to serve a timely tendency notice. The accused had advance knowledge of the evidence and intended to rely on parts of it herself (at [69], [98]). The court directed under s 100(1) that the reasonable notice requirement in s 97(1)(a) be dispensed with (at [98]). The court also accepted that s 101(2) did not apply because the tendency asserted related to the alleged victim, not the accused (at [73]-[74]).

On the substance of the tendency application, the court found the evidence supported two limbs: a tendency to engage in short-term sexual encounters, and a tendency to falsely promise long-term relationships to facilitate those encounters (at [90]-[92]). The multiplicity of the alleged victim's email entreaties to different women over many years, sometimes simultaneously, combined with candid admissions to Sandra Weavers that he had no intention of committing to a long-term relationship, established the falsity of those promises (at [92]). Evidence concerning interactions with Tracey, Diana, Mandy, and the documented episode with Bronwyn supported the short-term encounter limb (at [90]-[91]). Evidence from Damien Dickie and a passage from neighbour Aaron O'Leary's statement were excluded as insufficiently detailed to meet the significant probative value threshold (at [96]).

Orders Made

  • Hearsay passages in the statements of Susan Carter, Annette O'Reilly, Gary Weavers, and Sandra Weavers admitted under s 65(2)(c) of the Evidence Act 1995 (NSW), except for paragraph (34) of Gary Weavers' statement dated 19 June 2016 and paragraph (8) of Sandra Weavers' statement dated 19 June 2016.
  • The Crown permitted to adduce tendency evidence establishing that the alleged victim disavowed long-term, live-in relationships and engaged in short-term sexual encounters, including by falsely promising long-term relationships, from the following sources: Annette O'Reilly (paragraph 27 of her statement), Gary Weavers (paragraphs 13 and 14 of his statement), Sandra Weavers (paragraphs 12 and 16 of her statement), Darren Dickie (page 322 of trial transcript), the evidence of Tracey, Diana, and Mandy, the COPS report account of the interaction with Bronwyn, and the email extracts from the alleged victim's iPad.
  • The court directed that, despite the absence of reasonable notice, the tendency evidence is admissible pursuant to s 97 of the Evidence Act 1995 (NSW).

Key Takeaways

  • Under s 65(2)(c) of the Evidence Act 1995 (NSW), the "highly probable reliability" test focuses on the circumstances in which a representation was made, not solely on whether its content is independently verifiable. A long-standing relationship of trust between the speaker and the listener, and the inherently memorable nature of what was said, can satisfy that test (at [29], [32]).

  • Representations made to close family members carry significant weight in the reliability analysis under s 65(2)(c), even where independent corroboration of the content is absent (at [32], [94]).

  • Where proposed tendency evidence relates to an alleged victim rather than the accused, s 101(2) of the Evidence Act (which requires probative value to outweigh prejudicial effect) does not apply (at [73]-[74]).

  • The "significant probative value" threshold for tendency evidence under s 97 requires more than brief or context-free assertions. Evidence from two witnesses was excluded precisely because the relevant passages were too brief and lacked sufficient detail (at [96]).

  • Sheer multiplicity of consistent conduct across many years, combined with candid admissions to a witness over that same period, can establish the falsity of repeated promises for the purpose of a tendency finding under s 97 (at [92]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) , ss 59, 65, 66A, 97, 99, 100, 101, 192A

Cases
- Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579
- Dogan v R [2020] NSWCCA 151
- Greenaway v R [2021] NSWCCA 253
- R v Ambrosoli (2002) 55 NSWLR 603 at 616; [2002] NSWCCA 386
- R v Dawson [2022] NSWSC 814
- R v Singh (No 4) [2021] NSWSC 75
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
- Taylor v R [2020] NSWCCA 355