R v Jobling[2009] QSC 279

SUPREME COURT OF QUEENSLAND

1. Scott Andrew Jobling is charged with the murder of Suzanne Cheryl Standing. This is an application brought by Mr Jobling pursuant to section 590AA of the Criminal Code to have certain evidence excluded that the prosecution proposes to lead. 

2. The disputed evidence concerns the relationship between the accused and the deceased. Part of the evidence consists of statements made by the deceased to the witnesses proposed to be called. Part of the evidence relates to statements alleged to have been made by the accused to witnesses or observations by witnesses of his conduct towards the deceased.

3. So far as the statements made by the accused and observations as to his conduct are concerned, the objection is based on grounds of relevance.

4. With respects to statements made by the deceased to the witnesses about the relationship between the deceased and the accused the basis for the objection is that the evidence is hearsay and does not satisfy the necessary preconditions namely:

1. That the conditions of s 93B(2) of the Evidence Act 1977 (Qld) be met; and

2. That the evidence be such that a “relevant inference may logically and reasonably be drawn” from it that advances the Crown case.^[1]

The Prosecution Case

5. The prosecution case against Mr Jobling is based on s 7(1)(d) of the Criminal Code.  Beau Ernest Hinschen has been found guilty, after trial, of murdering Ms Standing.  It is alleged that the accused procured her murder.  Mr Hinschen has given various explanations for his conduct, including a denial that he murdered Ms Standing, but on occasions maintained that he murdered Ms Standing at the behest of Mr Jobling.

6. According to Mr Hinschen, Mr Jobling wanted Ms Standing killed in order to gain custody of their five year old son Andrew.

7. It is common ground that the accused and the deceased were in a sexual relationship which resulted in the birth of their son Andrew in the year 2000. Their relationship broke down prior to Andrew’s birth, was resumed after his birth for a short period and then again broke down. Ms Standing was murdered on 5 August 2005. She and the accused were to appear in the Family Court on 8 August 2005 in relation to aspects of the custodial arrangements for their son.

8. The Crown theory of the case is that the accused became obsessed with his young son, had at all times been controlling and violent towards Ms Standing and eventually determined to have her killed in order to secure custody of his son. Thus the relationship evidence that the Crown wishes to lead touches on the accused’s displayed attitude towards the deceased and others within her circle of acquaintances reflecting, so the prosecution says, on the accused’s determination to keep any male figure out of Andrew’s life.

The Defence Contentions

9. Mr Glynn of Queens Counsel appeared with Mr Clarke for the accused. Their primary submission was that various statements of the deceased that the Crown wishes to lead and, in many instances, the direct evidence that the Crown wishes to lead, of the relationship between the deceased and the accused are not relevant because they demonstrably have no bearing on this claimed motive.

10. A further general submission made by Mr Glynn is that much of the disputed material is too remote from the death to be relevant evidence of the relationship at the time of death. The submission went that some statements related to a period possibly six years prior to the death and certainly were not close to the time of death. If they had any probative value it was submitted that they should be excluded on discretionary grounds.

Response to the Primary Defence Submission

11. I accept as accurate the submission that many of the statements have no apparent relevance to a motive, ascribed to the accused, of a wish to remove the deceased from the “custody equation”. However I have two difficulties with the argument. The first is that, accepting the Crown case, it is simply not known what motivated the accused to act as he did. The fact that the accused might assert that his complaint centered on the child does not necessarily make it so. Such statements might be merely a convenient excuse for the accused to continue his controlling treatment over the deceased.

12. More significantly in my view that submission overlooks the principal reason for the admission of the evidence and overly limits the purposes for which evidence of this type can be received. The issues are not restricted to the possible motive that Jobling may have had but go to the broader question of whether Jobling procured Hinschen to kill the deceased. The question is whether the evidence provides material from which the fact of the procurement might be logically and reasonably inferred.

13. As Barwick CJ explained in Wilson v R:

“No doubt in the text books it is the inference of motive which is said to be open on evidence of bad feelings between the parties or of the terms on which they have lived.  …but it is clear that such evidence may also provide material on which the fact of the killing may be inferred…it is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal.  If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible.”^[2]

14. In Wilson the fact in issue was whether the accused had shot his wife in the back of the head or whether the gun placed in a load of hay had accidentally discharged at a time when it was pointing towards the back of his wife’s head. In that context Barwick CJ said:

“It is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury.  Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife.  Equally, evidence that they had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility.”^[3]

15. Evidence of the type in question here, which I will refer to as “relationship evidence”, can be received provided there is a legitimate forensic purpose for its admission. Here, the question is whether there is any probative force in having the jury informed of the attitude of the accused towards the deceased. The prosecution submission effectively is that without this evidence the account before the jury would be inexplicable. Apposite are the comments in R v Fulcher [1995] 2 Cr App R 251 at 258 where the Court of Appeal (Kennedy LJ, Kay and Keene JJ) approved the following observation of Purchas LJ:

"Where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence."

16. Similarly in R v Sawoniuk [2000] 2 Cr App R 220 at 234 where the Court of Appeal (Lord Bingham of Cornhill CJ, Tucker and Hallett JJ) expressed a similar principle:

"Criminal charges cannot be fairly judged in a factual vacuum. In order to make a rational assessment of evidence directly relating to a charge it may often be necessary for a jury to receive evidence describing, perhaps in some detail, the context and circumstances in which the offences are said to have been committed."

17. Part of the Crown case includes material that shows that Hinschen had no prior dealings with the deceased. He had never met her. He was friendly with the accused. There are two alternatives for the jury – one is that Hinschen was acting alone and this was a senseless killing of a woman that he had never met and had no reason to have any ill will towards. The other is that he was acting on behalf of another and that other was his friend Jobling, a man who had exhibited violence towards the deceased and her friends in the past, had expressed an interest in having her killed, and who was involved with the deceased in continuing conflicts in the Family Court over custody of their young son. The relevant inference that the Crown will ask the jury to draw is that far from this being a senseless crime, it was a crime with a distinct purpose, that being that Hinschen was acting as Jobling’s agent to kill the deceased in order for Jobling to advance his own purposes whatever they may have been. To establish that context the Crown contends this relationship evidence must be led.

18. Relationship evidence was held to be plainly admissible in this jurisdiction in a case involving the alleged securing of another to murder the accused’s spouse: R v Lester.^[4]

19. In my view a relevant inference can logically and reasonably be drawn from the relationship evidence to assist the jury in the choice between the two alternative explanations. Thus I am not satisfied that it would be appropriate to reject all relationship evidence as simply irrelevant to any issue. The accused’s primary submission fails.

The Lack of a Temporal Connection

20. In general I agree with the defence submission that there is an obvious concern in the Crown leading evidence of conduct that occurred many years prior to the murder of the deceased. This is especially so where some of the evidence would appear to pre-date the deceased and the accused getting back together again after their initial break-up. That there needs to be some temporal limit is not only plain as a matter of logic but is well supported by authority: e.g. R v Heath [1991] 2 Qd R 182 at 204 per Cooper J; R v Iuliano [1971] VR 412 at 416. In that latter case the Court (Winneke CJ, Little and Gowans JJ) said:

"It is not necessary that any particular incident related in evidence should, regarded singly, and of its own force, establish a relationship of enmity or distrust. It is sufficient if the incident related makes a contribution which is not insignificant or unsubstantial to a climate of antipathy. Of course, if the incident is isolated and at a considerable distance of time before the death, it may afford no evidence at all of relations between the parties at the time of the death which could have any bearing on motive or intention.If it is not too remote, and its existence along with other incidents or circumstances related in evidence tends to establish a climate of the kind referred to, the evidence of the incident is relevant. We think that the act of a wife in publicly charging a husband to his face with having done something to cause serious physical injury to her, calculated as it is to provoke in him feelings of irritation, animosity or indignation, and made in the setting of a quarrel, or what may fairly be regarded as such, may be regarded as making a real contribution to an atmosphere or climate of enmity or distrust. It is a fact tending to prove a fact which is itself relevant, namely, a relationship between the two which is explanatory of the conduct of the accused."  (underlining added)

21. The prosecution point is that apart from the occasion of the break in the relationship and the getting back together there does not seem to be any logical point at which one can draw a line in the sand and say that events that occurred before a particular date are irrelevant to the relationship at the date of death and events after that time necessarily relevant. The events that the witnesses are describing or relating as the deceased’s version are not isolated but are part of a continuum. They indicate a continuing climate of antipathy towards the deceased over the years leading up to her death.

22. Every case of course must depend on its own facts. Nonetheless it is not irrelevant to note that in Wilson v R^[5] the High Court held that it was appropriate to receive into evidence statements made by the deceased 12 and 24 months before her death to the effect that she knew the accused wanted to kill her. The statements were thus remote in time to the death. The Court expressly rejected the notion that there had to be any causal connection between the death and the statements such as showing a motive or providing a basis for a homicidal response.^[6]

23. The only limit on the reception of the evidence that I perceive as appropriate is one where it can be said that the events are not capable of logically and rationally affecting the assessment of the probability of the existence of the fact in issue, that fact being whether the accused was likely to have procured the murdering of the deceased. Events prior to the accused and the deceased getting together again, after the birth of their son, cannot be logically probative of that fact. Events subsequent to the final separation will be logically probative of the fact in issue if they advance the prosecution case that there was an ongoing “climate of antipathy” towards the deceased by the accused.

24. As best I can determine from the statements there appears to have been a constant attitude of hostility displayed by the accused towards the deceased from a time not long after their final separation. This was displayed by way of personal abuse and threats towards the deceased, repeated visits to her home unannounced, attacks on the vehicles of her male friends, and violence towards the deceased. Plainly enough evidence of such acts in the last year or two of the deceased’s life have a compelling logic to their admission. Thus Mr Glynn indicated that he would take no objection to the following evidence concerning events that occurred well before the death:

“When I first started seeing Suzie he would often contact her and abuse her.  I can recall one particular occasion while Suzie was living at Blanchfield Street.  Scott wanted to keep Andrew for a little bit long (sic) and Suzie said, ‘No’.  Scott then got verbally abusive towards her, calling her names in the street, ‘you fucken slut’.  I can remember this was in 2004.  I was inside her house and Scott did not know I was there.”^[7]

25. While some of the evidence is of acts long before the death of Ms Standing, for example the attack on Deon Wilson’s car in 2001, there seems no logical basis on which to exclude such evidence. I did not understand Mr Glynn to contend otherwise.

26. Before turning to the disputed statements I will set out the relevant statutory provisions governing the admissibility of hearsay statements and the test that has been used in applying those provisions.

Section 93B preconditions

27. Section 93B of the Evidence Act 1977 (Qld) provides, so far as is relevant, as follows:

“93B Admissibility of representation in prescribed criminal proceedings if person who made it is unavailable

(1) This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact—

(a) made a representation about the asserted fact; and

(b) is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence.

(2) The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was—

(a) made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or

(b) made in circumstances making it highly probable the representation is reliable; or

(c) at the time it was made, against the interests of the person who made it.

…

(4) To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.

(5) In this section—

prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 32.

representation includes—

(a) an express or implied representation, whether oral or written; and

(b) a representation to be inferred from conduct; and

(c)a representation not intended by the person making it to be communicated to or seen by another person; and

(d) a representation that for any reason is not communicated.”

28. Murder is a “prescribed criminal proceeding” within the meaning of s 93B.

29. The Crown contend that the test to be applied in determining the “reliability” conditions in s 93B(2) for admissibility is that from R v Ambrosoli^[8] and adopted, at least implicitly, by Fraser JA and the other members of the Court in R v Lester^[9]:

“(a)The statutory test is not whether, in all the circumstances, there is a probability [Section 93B(2)(a)] or a high probability [Section 93B(2)(b)] of reliability, but whether the circumstances in which the representation “was…made” determine that there is such a probability.

(b)Evidence tending only to prove the asserted fact may not be considered.

(c)Prior or later statements or conduct of the person making the previous representation may be considered to the extent that they touch upon the reliability of the circumstances of the making of the previous representation – but not if they do no more than tend to address the asserted fact or ultimate issue…”.

30. I assume the correctness of that test for present purposes. I now turn to the disputed statements.

Katrice Lulet Kupke

31. Ms Kupke was a close friend of the deceased. Her statement records that she knew the deceased “really well, we were like sisters”. They had met in high school and had kept in touch after they left school. She says that when they caught up, the deceased “used to tell me everything about her personal life”. By the time of the deceased’s death Ms Kupke was aged 29 years.

32. After referring to the break up of the relationship between the deceased and the accused after the deceased found out that she was pregnant to him, Ms Kupke then relates the following matters which are the subject of the objection taken by the accused:

“8.Scott seemed fine with the break up at first, but when she got her life on track and was on top he became really nasty and began stalking her.  He would sit out in front of her house and follow her when she went out shopping.  He used to harass her over the phone constantly and would always threaten her, to kill her or hurt her. 

9. I remember him saying things like ‘you’ll never be happy while I’m around’, and ‘I’m going to make your life a living hell’.  Scott used to cause scenes when she was out with people, he would try to start arguments or yell at her.  He was always accusing her of being a slut and sleeping around.

10. Suzanne was always calling the police on him when he threatened her, I think they had a domestic violence order. 

11. The most recent thing I can remember was when Scott was working up in Mt Morgan, some time at the start of 2005.  I saw him in the street and he told me ‘Suzanne is still dressing like a fucking slut.  I hate her fucking guts.  One day she is going to push me too far and she is going to get hurt.’

12. The last time I saw Suzanne was about two months ago at Northside Plaza in Rockhampton.  At that time I just saw her in passing and we made small talk about our kids.  We made plans to catch up properly on her birthday. 

13. I know Suzanne was terrified of Scott, because she once said to me ‘if anything ever happens to me, make sure they look in Scott’s direction’.”

33. The reference to “Scott” is a reference to the accused. The reference to “Suzanne” is a reference to the deceased. Ms Kupke’s statement is dated 11 August 2005. In a supplementary statement taken on 22 August 2005 Ms Kupke provided further details of the harassment that she observed that the accused subjected the deceased to which included the following:

“20.…One night I was at Sue’s place…Sue was upset about an argument with Scott over the telephone.  The next thing I knew Scott had pulled up at the front of the house, in the driveway, in a little metallic blue sedan.  He stood in the front yard and started yelling out at her.  He said words to the effect, ‘You fucking slut, you’re never going to be happy as long as I’m around.  Andrew’s my kid as well.’

21. Another occasion it was late one night about 10.30.  I was at Sue’s place and we heard a car pull up outside.  Sue recognised the sound of the car as Scott’s car.  We snuck into Andrew’s room and looked through the curtains out into the street, and across the road, under a tree we could see Scott sitting in the car.  He was visible from the light of the street lights. 

22. Because of my constant contact with Sue she told me about countless other incidents like this.  On one occasion I recall her calling out saying she saw Scott sneak in under her house, he was under there rattling things around.  I’m aware that this was going on while she was still on the phone to me.  I would stay on the phone until she was ready to call the police.  It was a case that I wouldn’t get off the phone unless she was calling the police. 

23. I included in my first statement I outlined how I ran into Scott in the main street of Mt Morgan in 2005.  I recall that it was very early in the year, I can’t recall a month, but I can remember that Scott was up there selling stationery and office supplies.  I was outside the pharmacy…I remember Scott said, ‘How are you?’

I said, ‘Yeah, good’.

Scott said, ‘Have you seen Sue lately?’

I said, ‘Yeah, I seen her a couple of weeks ago.  She’s doing good.’

Scott said, ‘What do you think of Andrew now?’

I said, ‘He’s absolutely gorgeous’.

Scott said, ‘The fucking bitch is playing games again’.

I said, ‘What with?’

Scott said, ‘With Andrew, she won’t fucking let me see him.  I only get every second weekend which isn’t that much time’.

I said, ‘Oh well, you’ll get over it.  That’s law for you.’

Scott said, ‘The fucking slut’s still working as the rose seller.  Have you seen the slutty clothes she still wears.  I fucking hate the bitch’.

I said, ‘I don’t want to fucking know.  You just get on with your life and let her get on with hers’.

Scott said, ‘Well one day she’s gonna push too far and she’s gonna get hurt’. 

I said, ‘Ah, look, I’ve got to go’. 

34. Obviously, the reference to “Sue” is to the deceased.

35. Ms Kupke’s evidence consists both of direct evidence of her witnessing the conduct of the accused towards the deceased and of her hearing statements made by the accused about the deceased as well as hearsay evidence of what the deceased told her the accused was doing to her and of her fear of him. With respect to that latter category of evidence no submission is made that the necessary preconditions laid down in s 93B have not been met. In some instances the representations made by the deceased to Ms Kupke were clearly made at the time that events were happening or shortly thereafter. In some instances it is not so clear. Whatever be the situation I am satisfied that the statements made by the deceased to Ms Kupke were made when it was highly probable that the representations were reliable. The closeness of their relationship and the lack of any apparent motivation in the deceased to mislead her friend are significant circumstances.

36. Mr Glynn’s principal point as I understood it was that if the Crown’s alleged motive went to the disputed custody of the child Andrew, then no logical connection could be drawn between the conduct that arguably occurred prior to his birth or around the time of birth and Ms Standing’s death five years later. As I have explained in my view the relevant issues are broader than simply the question of what may have motivated Jobling. I agree with the submission that statements and conduct pre-dating the renewal of the relationship, or prior to the final separation, and some five years or more prior to the deceased’s death are hardly probative of the state of a relationship at the time of death.

37. The difficulty that I have in ruling on the admissibility of most of the evidence is that no attempt has yet been made to put it into any temporal context. There seems to me to be two matters worth noting. Clearly Ms Kupke is relating harassment and threats of doing the deceased harm at a time before the child Andrew was a significant factor in their lives, and so long before the deceased’s death. Secondly, there is no obvious break in the course of conduct. The impression that I have from Ms Kupke’s statement is that the conduct she is describing took place regularly over the years. The reference to her frequent contacts with the deceased and her relating of “countless other incidents” emphasise the artificiality of drawing a line in the sand.

38. Subject to the indications that I have given as to the limitations on the evidence I would be prepared to admit I am satisfied that Ms Kupke’s statements are relevant and admissible. Plainly the events related in paragraph 23 of the supplementary statement are sufficiently close in time to the death and are therefore admissible. If the Crown is unable to demonstrate that the events that Ms Kupke speaks of have any relationship to conduct within the last, say, 2 years of the deceased’s life, or are demonstrably of the same type of conduct as occurred within that period, I would exclude the evidence as either not probative of any fact in issue or insufficiently so to outweigh the prejudicial effect of it.

Lucas Gordon MacDermott

39. Mr MacDermott knew of the deceased for some six years before she died but became friendly with her only in the last six weeks of her life. According to his statement he and the deceased formed a relationship within that period of six weeks. He discovered the deceased’s body after he had become concerned that she had not returned his phone calls or text messages on the night that she died. He provided his statement two days after her death on 7 August 2005.

40. The disputed parts of his statement (with added material to put it into context) read as follows:

“30.I think Mick lived up from her, my understanding from what she told me was that he lived nearby.  She also told me her ex-boyfriend, Andrew’s father, smashed up Mick’s car with a baseball bat.  She said Mick had got a new car and was worried about it happening again.  This also caused me to be concerned. 

…

36. Sue has told me about her ex who is Andrew’s father.  I don’t remember his name, I have never met him. 

37. Sue told me she was going to Legal Aid, she didn’t really want him to see Andrew any more because of the type of person that he was.  She said he was putting things into Andrew’s head, things like be mean to your mum.  She noticed a difference in Andrew’s behaviour and attitude after he had been at his father’s house.

…

43. I remember once I was at Kershaw Gardens with her last Monday or Tuesday.  Sue was concerned about the court cases, she was worried about how long they would have to go for and I said it could be a year because court cases drag out.  She said ‘I was thinking more like a couple of months’. 

44. We then went to the playground equipment and talked and hugged each other for one or two hours.

45. She was saying how he threatened her once.  He said he would burn her house down and stuff like that.  It was a general type of chat.  I stated to her that this ex-boyfriend scares me for her because what she was saying. 

…

49. Sue talked about her ex’s family.  She told me that one time she was either picking up or collecting the son (I don’t remember which), I don’t know how long ago this was and the parents said he’s out the back and the boy (Andrew) was there.  The ex was having a beer and there was a discussion and the ex went off his head at her and I think she said he slapped her or something like that and the parents did nothing to stop him, she changed her point of view of the parents after this.  She said the ex could do anything and his parents would back him up 100%. 

50. I think she had got on with them before that.

51. Sue said that the ex phones to speak to Andrew at 6.30 or 7 in the afternoon, I’m not sure what days.  She said that one day she was running a bit late because she was with me and she got home a couple of minutes past the call time.  The phone had rung three times around the time and she had missed the calls.  When he rung he had a go at her for being late for his phone call to Andrew.  She said he gets really pissed off and angry at things that inconvenience him.

52. Sue told me she was getting maintenance but I’m not sure of any details. 

53. Sue said she wanted Andrew to have supervised visits with his father and she was trying to do that because she did not think he was a good father and she was worrying about that.

54. I remember one morning this week me and Sue were laying in bed...

56. Sue said that her ex was jealous of everything she did to get ahead.  She said that she saved so she could buy her house and did it without telling anyone, and when she did he was jealous of her because she was advancing herself and he did not like this. 

41. The reference to “Mick” in paragraph 30 is a reference to a former boyfriend of the deceased (one Michael John O'Toole). The Crown has evidence from a number of sources that the accused did in fact damage O'Toole’s car. The Crown theory that the accused wished to exclude any male figure from his son’s life is relevant here as O'Toole looked after Andrew when Ms Standing was working as a flower seller.

42. Mr Glynn’s objection to the receipt of the evidence in paragraph 30 is that the Crown cannot satisfy the requirements of s 93B(2)(b) of the Evidence Act, that is, that the prosecution cannot show that the representation made by the deceased was “made in circumstances making it highly probable the representation is reliable”. 

43. My Glynn’s point is that the deceased’s comment to one defacto about a former defacto’s behaviour, especially a comment that might be designed to win her sympathy from her present defacto, is hardly of itself sufficient to render it “highly probable” to be reliable. Motivations other than the desire to tell the truth can be at work. In this regard I accept that evidence tending only to prove the asserted fact (that is that the accused did smash up O'Toole’s car) is not to be considered.^[10]

44. This has the rather odd effect that even though there seems to be ample evidence of the fact that the statement about the damage to the car was true, including admissions made by the accused to other witnesses, that cannot be called in aid by the prosecution to render admissible the hearsay statement. One possible explanation for this is that the legislature may have thought if you have direct evidence of the asserted fact why bother with hearsay evidence. Primary evidence is, of course, the best evidence.

45. I cannot see that any later statement or conduct of the deceased helps in determining whether in all the circumstances there is a high probability of reliability of the representation.

46. I uphold the accused’s objection to the evidence.

47. Mr Glynn’s objection to the material in paragraphs 36 to 40 is that it has nothing to do with the relationship between the deceased and the accused. It merely relates that there were differences between them, and difficulties between them over their child. To the extent that that is all that the material does the point is conceded by the prosecution.

48. In my view that leaves for determination the objection only to the part of paragraph 39 which reads, “She was talking about how her ex used to threaten her and make life hard”. Mr Glynn’s submission is that that is so unspecific as to leave the jury “with no opportunity to decide for themselves whether in fact what was said amounts to a threat”.

49. I agree with the submission. If Mr McDermott was in a position to describe precisely the words that the deceased said that the accused used to her or even give some particulars as to what the threat might be that she was speaking of, then that might render the statement helpful and admissible. As it stands I am not prepared to admit it into the evidence.

50. Mr Glynn’s objections to paragraph 45 are that the reliability requirement of s 93B(2)(b) cannot be satisfied in relation to the first sentence and that the information conveyed in the second sentence, that is Mr McDermott’s attitude to what he was being told, is simply irrelevant to any fact in issue. The submission is clearly right in relation to the second sentence.

51. As to the first sentence, Mr Glynn’s submission again is that I cannot be satisfied that the deceased was not simply trying to get sympathy from a new boyfriend. He submits there is a real possibility of fabrication in those circumstances.

52. I have included paragraphs 43 and 44 in order to put a temporal context on the timing of the statement by the deceased to McDermott. It was made only days before her death. At this stage it is evident they had a sexual relationship ie their relationship as very close. Under the Ambrosoli test I can bring into account “prior or later statements or conduct” of the deceased “to the extent that they touch upon the reliability of the circumstances of the making of a previous representation”.  One such prior statement is that the deceased had told McDermott of the truthful fact (truthful according to several other witnesses) that the accused had smashed up her former boyfriend’s car.  It is difficult to see why the fact that the deceased had made truthful statements about the accused’s conduct on prior occasions isn’t relevant to the reliability of the circumstances of the making of this statement.  Nonetheless I know very little about the circumstances other than the fact that McDermott and the deceased were conversing at Kershaw Gardens and were in an intimate relationship.  Whilst for myself the probabilities would favour that in those circumstances representation of this type would be reliable, I am not prepared to find that it is “highly probable” that that be so.  Further I am concerned that the threat to which the deceased was referring is not shown to be made in the recent past.  That is, whether the threat was made five years before or one week before is unknown. 

53. In all the circumstances I am not prepared to admit these statements into evidence.

54. Mr Glynn’s objection to paragraph 49 of the statement is again on the basis that the reliability requirements of s 93B(2)(b) are not met and further that it is too imprecise. The statement reads “I think she said he slapped her or something like that”. Mr McDermott expressly says that he was unable to say when the event occurred. In my view whilst the extra details provided as to the place and surrounding events add to the probability of the reliability of the statement such that I would, in this case, accept that the requirements of s 93B were met, I agree with the submission that as worded the statement is too imprecise. If Mr McDermott indeed means to say what is recorded there – that is that he is not sure that that is what she said – then in my view it ought not to be led.

55. Further, the statement to the extent it refers to the parent’s attitude to the accused and his conduct seems to me to be irrelevant to any issue in the case. Again I would exclude that evidence.

56. The facts related in paragraphs 51 to 53 again do not seem to me to be relevant to any matter in issue. The mere fact of disagreements over custodial arrangements and the like, and the deceased’s opinion as to the accused’s parenting abilities have, in my view, little probative value. In Wilson, Barwick CJ cautioned against the admission of evidence of “ ‘quarrels’ which were no more than ‘transient ebullitions of annoyance and anger on the part of the accused which immediately passed away and led to nothing’ and which did not proceed from hostility or enmity nor tended to show the existence of or to promote such feelings”.^[11]  In my view the disputes over custody fall more into this category and cannot be shown to necessarily emanate from hostility or enmity.

57. Finally in relation to paragraph 56, I have again included earlier paragraphs to put it into a temporal context. Mr Glynn’s objections are both as to relevance to any fact in issue and reliability. He submits that the material in the paragraph amounts merely to the deceased’s opinion as to the accused being jealous of her efforts to get ahead. In my view this submission is right. Her view of whether he was jealous or not cannot be probative of any fact in issue. I exclude that evidence.

Deanna Lee Miles

58. Ms Miles provided her statement on 8 August 2005, three days after the deceased’s death. At that time she was 28 years of age. The statement shows that she first met the deceased about nine years prior to her death. She describes the deceased as her “best friend” and said that she talked to her nearly every day and more recently the deceased had called her more than once a day.

59. The disputed contents of her statement, with some references to put the statements into temporal context, are as follows:

“8.Sue keeps a diary and had done so for years, ever since she started having problems with Scott.  I think she might keep them in the kitchen somewhere, I am not sure.  Scott is Sue’s ex partner and father to her son Andrew.  Sue was with Scott when I first met her, but I never really had much to do with Scott.  He did not like Sue’s friends or like Sue being with her friends.  She would say that he was really jealous and couldn’t stand her being with anybody or talking to anybody else, so I never really had anything to do with him personally.  He was the type of guy that would want to have someone all to themselves.

9. Sue has talked a fair bit to me about Scott and the problems that she has with him but it all just blends into one, I can’t remember everything she has said or any real details.  I remember that she said to me that he would raise his hands to her, like to her face as though he was going to hit her but then didn’t hit her.  I don’t know if he has ever hit her.  This sort of stuff is what she would write in her diary I think.

…

11. They split up just before Andrew was born but Scott came back into her life for a bit just before Andrew was born when Sue’s mother died.  This didn’t last though and they split up again. 

12. When Andrew was born, Sue was living at 22 West Street Rockhampton.

…

13. When she was living at 22 West Street she told me of times when she was at home and heard noises under the house and suspected that it was Scott.  She said that she was receiving abusive phone calls.  I can’t remember what the exact content of the phone calls were, I just remember her being upset and said they were abusive. 

14. She moved to an address in Blanchfield Street North Rockhampton.  I think it was 268 or 286, I can’t remember.  She lived here on her own with Andrew.  She would keep receiving abusive phone calls and I think there were times when Scott was continually driving past her house. 

15. She was getting the police involved in domestic violence matters all the time.  I never witnessed any incidents between the two of them. 

…

25. Whenever Scott found out that Sue was seeing someone or spending time with someone he would get jealous and start harassing her with phone calls and threatening her more than usual.  I keep saying that he threatened her but I can’t say any more than that because I don’t know exactly what he did to threaten her.  I know she really feared him and feared for those people who were close to her.  She talked to me about a lot of stuff but I can’t recall specific details about what she would say.”

60. Although it is not entirely clear from Ms Miles’ statement it seems that she made no personal observation of any threat by the accused to the deceased. She expressly says that she did not observe any acts of violence between them. Thus one assumes that what is contained in her statement reflects what she was told by the deceased. Thus her evidence is hearsay and must satisfy the requirements of s 93B of the Evidence Act in order to become admissible. 

61. Mr Glynn’s primary objection to much of this material is that it is too vague and imprecise to satisfy the requirements of the Act. Mr Glynn’s submission is that what s 93B permits to be admitted of representations made by the deceased “about the asserted fact” of which the deceased had personal knowledge (s 93B(1)(a)). Plainly enough the “asserted fact” must be one to which the deceased could have given evidence had she lived. That is made plain by ss 93B(4).

62. No objection was taken by Mr Glynn on the grounds of reliability. For the purposes of the argument I am prepared to assume that reliability is established. Certainly Ms Miles was very close to the deceased on her account and there is no apparent reason why the deceased would wish to mislead her.

63. In my view the contents of paragraph 8 are not admissible. Firstly they appear to relate to the time when Ms Miles first met the deceased some nine years before her death. Secondly they relate the deceased’s opinion of the accused but without giving any particulars of the facts on which the opinion is based. Thirdly they reflect Ms Miles’s opinion of the accused again without giving any basis for the opinion save the vague generalities provided by the deceased. In my view if Ms Miles was able to relate statements made by the deceased of actions of the accused which would support the opinion that “he was really jealous and couldn’t stand her being with anybody or talking to anybody else”, such statements being made within the last year or two of the deceased’s life, then they might possibly bear upon the relevant issue as to whether the accused was likely to have procured Hinschen to kill the deceased. As expressed the evidence falls well short of that.

64. The only incident detailed in paragraph nine – that of the accused raising his hands to the deceased as if to hit her – would in my view be admissible if the statements were made within say 24 months of the deceased’s death as logically reflecting on hostile relationship in that period leading up to her death. As presently presented the evidence does not satisfy that temporal requirement and is inadmissible.

65. There are a number of difficulties with the contents of paragraph 13. Firstly the events appear to relate to the time around when Andrew was born – five years before the deceased’s death. Secondly the hearing of noises under her house and suspecting that it was the accused is not admissible against the accused. The deceased’s suspicions as to who was under her house cannot be logically probative of any issue in the trial. The statement relating to the abusive phone calls may become admissible if it was clear that the deceased said she was receiving the calls from the accused. Mr Pointing concedes that if he cannot establish so much the evidence is inadmissible. In the absence of evidence as to the detail of the content of the calls, I would not be prepared to admit them into evidence. The “asserted fact” is not what the accused actually said but the deceased’s opinion as to the nature of the calls and her reaction to them - that they upset her. That in my view cannot be admissible against the accused as it is not logically probative of any issue. Evidence as to what the accused said in the phone calls might well be admissible but at this stage that is not known.

66. The contents of paragraph 14 suffer from the same deficiencies as the contents of paragraph 13. Ms Miles relates at paragraph 16 of her statement that the deceased moved to the house where she was killed “within the last year”. Thus it is possible that the matters that she relates that occurred at Blanchfield Street North Rockhampton did occur within 12 months of Ms Standing’s death.  However at this stage so much is not established.  Again Ms Miles records that the deceased received “abusive phone calls” but without details of what the calls were.  Her reference to the accused “continually driving past her house” is not said to be a statement made by the deceased to her although that presumably is what she means to say but she qualifies that with the words “I think”.  The evidence in its present form is simply too imprecise to be admissible. 

67. The contents of paragraph 15 did not advance matters. If the deceased made complaints to police officers relating to episodes of domestic violence by the accused then the best evidence of that comes from the police officers. It is in no way advanced by Ms Miles’s very broad statement.

68. There are two difficulties with the contents of paragraph 21 of the statement. The first is that the events related occurred when the deceased was living at 22 West Street which would seem to be some years prior to her death.  Secondly it is not clear whether the deceased witnessed the events that are related or whether she was told them by her friend Deon.  In my view these statements are inadmissible. 

69. As to the contents of paragraph 25 there is firstly the question of when the threatening phone calls were made. If one assumes they were made within a 24 month period of the deceased’s death then they would seem to fit in with other evidence of a continuing hostile attitude to the deceased through this time. Mr Glynn’s further objection is that to merely call the phone calls “threatening” is to express an opinion about the contents and not to relate the contents themselves. It is what the accused may have said in the calls that could be admissible and relevant not what the deceased’s opinion about those calls might be. Whilst I am sympathetic to the submission I do not think it would take much to render these statements acceptable. For example, if the deceased informed Ms Miles that in the phone calls the accused was threatening to physically harm her in some way, that I think would be sufficient. But the mere use of the words “threatening” could cover a very wide ambit and in my view is to imprecise to be probative. Ms Miles’s statement seems to make plain that at one time she was told the contents of the calls but at the time she gave her statement could not recall them. Thus it may be that the Crown can improve on the evidence but at this stage it seems to me that the contents of paragraph 25 are inadmissible.

Jeanie Lee Nichols

70. Ms Nichols provided her statement on the day after the deceased’s death. She was then 33 years of age. She is the deceased’s sister. She says that she and the deceased were very close and would talk nearly every day.

71. The first disputed part of her statement relates to an event on her wedding day which occurred on 20 June 1998. I agree with the submission that the events related are far too remote in time and irrelevant to any fact in issue.

72. The remaining disputed paragraphs read as follows:

“10.I also remember that sometime around the end of last year Sue told me that she went around to Scott’s parent’s place to pick up Andrew and she was asked to come upstairs by Scott’s parents and when she got to Scott he has grabbed her by the throat and he threatened her.  She didn’t say what he said but she said that his parents were watching and didn’t say anything.  She told me what had happened over the phone the day after it happened. 

…

12. There has been another time when Mick [a reference to O'Toole] has come over to Sue’s place and lent her his car so she go and pick up Andrew from Scott’s place.  Sue told me that when she got to Scott’s place he has come out and started kicking and hitting Mick’s car.  She said that he dented some of panels on the car.  Andrew had been put in the car by then and saw the whole thing.

13. They are the only times that he has used physical violence towards her that I can remember but on numerous occasions Sue has told me that she feared for her life because Scott has threatened her.  I recall one particular time that Sue told me about.  She said that Scott said to her that he was going to kill her and everyone in her life.  I don’t remember the time or date, but I do remember that she told me about it.”

73. As I understand Mr Glynn’s position he concedes that the contents of paragraph 10 would be admissible if I was against him on his primary submission that relationship evidence of this type is not probative of any fact in issue. I have found against him on that point and hence, as I understand it, he takes no further objection.

74. If I have misunderstood Mr Glynn’s position I can indicate that I would have found the passage to be relevant and admissible.

75. Mr Glynn accepted that the contents of paragraph 12 should be received principally because there was substantial other evidence establishing the event and there was little point to him persisting with an objection.

76. Mr Glynn’s complaints in relation to paragraph 13 are firstly that a complaint that the deceased feared for her life because the accused had threatened her was too general and secondly that it is unknown as to when the events occurred. Further he contends that I cannot be satisfied that there was a high probability that the statements are reliable.

77. I am not sure that the relevant test is one of high probability. Ms Nichols spoke to her sister, she says, nearly every day. It is true that in the paragraph in question she does not indicate whether it was apparent from the conversation that her sister was relating events that have occurred to her close in time to the conversation. It would seem to be virtually inevitable that that would be so if they spoke nearly every day. In any case it seems to me that the closeness of their relationship, the lack of any apparent motivation in the deceased to mislead her sister and the fact that it is apparent that on other occasions the deceased has related matters to her sister which were in fact true or highly likely to be true (for example, that relating to the attack on O'Toole’s car) all support a finding that the representations were made in circumstances making it highly probable that the representations here are reliable.

78. In my view statements made by the deceased to the effect that she feared for her life because the accused had threatened her with physical harm are admissible if made within a 24 month period prior to her death.

Michael John O'Toole

79. Mr O'Toole knew the deceased for three years prior to her death. He spoke and records that they “went out together” for six months and then stayed friends after the intimate relationship ended. He says:

“Our relationship was that we would both know each other’s movements and business on a daily basis and we freely shared our thoughts.”

80. He provided three statements to the investigating officers the first of which was taken on 6 August 2005. The initial passage to which objection is taken reads as follows:

“From what Suzanne has told me their relationship was quite volatile and I am aware that there is a domestic violence order in existence.  Suzanne often indicated to me that she was frightened of Scott because of his violent behaviour.”

81. Mr Glynn’s objections are that firstly a description of a relationship as “quite volatile” is no more than the witness’s opinion as to the effect of what he was told, that his knowledge that there was a domestic violence order in existence is irrelevant to any issue and the statement that the deceased often indicated that “she was frightened of Scott because of his violent behaviour” should not be received because it is not known in what circumstances the statements were made and so no assessment can be made of the probability of the reliability of the statement.

82. As Mr Glynn concedes the Crown might well be able to provide more and better evidence which might render the evidence from Mr O'Toole admissible. At this stage, with the evidence in its present form, the objections seem to me to be well taken.

83. I would add that an indication from the deceased that she was frightened of the accused does not on its own become admissible. Her concern must be attributed not only to the accused’s conduct but in my view to his conduct towards her. Otherwise all that such evidence would do was to indicate that the accused had a propensity for violent behaviour which, it is well accepted, cannot be used to further the Crown case. If Mr O'Toole means to indicate that the deceased was concerned because of the accused’s violent behaviour towards her then that at least has the potential of providing some evidence probative of the fact in issue. It would still be necessary to lead some evidence as to the circumstances in which any such statement was made. The fact that they were close and saw each other frequently (Mr O'Toole’s statement refers to him babysitting the deceased’s son Andrew every Friday night) would be very relevant to the assessment of the reliability issue.

84. In its present form I would not permit the evidence to be led.

85. In Mr O'Toole’s second statement, dated 7 August 2005, he there relates seeing the deceased on the evening of 1 August 2005 at her home and continues:

“13.I then [went] home to my address at 213 Meryl Avenue Frenchville.  At about 8.00pm that evening I received a telephone call from Suzie.  I can’t recall the exact conversation but we had a general conversation about Big Brother.  Suzie then said, “I am worried about the court case on Monday the 8^th day of August 2005.  I hope that the letter from the Department of Families comes before Tuesday, so then I won’t have to drop Andrew off at Scott’s parent’s house.  I might give them a call.”

86. Mr Glynn complains that the deceased’s representations about being worried about the court case have no relevance to any fact in issue in the trial. In my view he is right and the evidence in the paragraph is inadmissible.

87. The next part of the statement objected to is in the following terms:

“87.When Suzie and I would often talk Suzie would always tell me about the problems she was having with Scott Jobling, Andrew’s father.

88. Suzie and Scott were going to Family Law Court on Monday the 8^th day of August 2005.  Suzie has requested through her solicitor, Michael Stockall, that the Family Law Court order be changed to stop Scott from coming near her house.  She was doing this because he was coming to her residence.  Suzie was frightened of Scott.”

88. It would plainly be relevant for the jury to know that the deceased and the accused had custody proceedings before the Family Court which were to be heard on the 8^th of August 2005.  I cannot see how the deceased’s statement as to what her understanding was of the nature of those proceedings could be relevant to any fact in issue.  It may be that her understanding is accurate or not.  If it was not accurate then it would need to be shown that that misunderstanding was conveyed to the accused so that it might in some way influence his actions or attitudes towards her.  If her understanding was accurate then primary evidence can be led from the Court records as to the nature of the proceedings before the Court and an inference would be drawn that the accused was well aware of the nature and effect of those proceedings. 

89. The deceased’s statement of her fear of the accused might well be admissible but only in the context of that fear being related to the conduct of the accused towards her. At this stage that is not shown.

90. It is not apparent whether Mr O'Toole is relating that he observed the accused coming to the deceased’s residence or whether he was told that by the deceased. His direct observation could obviously be led in evidence. If the statements are all in the nature of hearsay statements from the deceased then the difficulty is that Mr O'Toole does not explain whether and how they might be linked together for example, he does not say that the deceased told him that the accused was coming to a residence, and because of his continual coming to her residence she was frightened of him. I have no doubt that if the deceased related that she was frightened of the accused and attributed her fear to actions taken by him which action she explained, then all that evidence would be logically probative of the fact in issue.

91. There is no submission that the representations would not meet the reliability conditions laid down in s 93B.

92. Thus in their present form it seems to me the statements are not admissible but it would not take a great deal more detail to render them, in my opinion, admissible and that is a matter for the Crown to explore. As Mr Glynn pointed out it may be that these questions will need to be revisited once the Crown can advise him of the full extent of the evidence they expect from Mr O'Toole and other witnesses.

93. Mr Glynn takes objection to paragraph 96 of Mr O'Toole’s statement of 7 August which reads:

“Another conversation about Scott that I can remember.  Suzie and I were talking.  Suzie said Scott didn’t like me being pregnant.  When I was pregnant one day we were driving out at Six Mile and Scott started to weave in and out of traffic and hitting potholes, he was trying to kill me.”

94. Plainly the facts related in the paragraph predate the deceased’s death by some five or six years. As well they relate events that occurred prior to the accused and the deceased patching up their relationship for a short period. In my view the statements are too remote from Ms Standing’s death to be admissible.

95. The disputed paragraphs in Mr O'Toole’s statement continue as follows:

“99.Suzie used to say: ‘Scott is obsessive and won’t let me go.  He used to drive past the house and if there is another car he ring me (sic) and ask me who owns the car?’ 

…

107. …Suzie has been at the Rockhampton police station on four or five separate occasions in 2005 in relation to Scott coming to her residence.  On every occasion she was told that there was nothing police could do.  I came with her every time, I remember a couple of times we saw Terry Hill, Bronwyn Allen.

108. On the occasion we saw Bronwyn Allen, Suzie supplied a statement to her.  I do not recall the exact date but it was the end of 2004.  The statement was in relation to Scott kicking my vehicle.  Suzie had gone over to Scott’s residence at Dean Street, Frenchville, I can’t recall the exact number to get Andrew.  Scott came out of the house with Andrew in his arms.  Suzie told me, Scott was yelling, ‘Where is Mick’.

109. She then said to him, ‘He is not here’.

110. He said, ‘Where is Mick, I want him.”

111. She said, ‘He is not here’.

112. Scott put Andrew into my car.  Suzie said while he was doing this he leaned over and put his fist up to her.  Scott then opened the front passenger side door and threatened Suzie.  He then punched my compact disc player.  Suzie was in the car (sic).  Suzie went to leave and Scott started to kick my car and open Andrew’s door.  Suzie then drove off and came straight over to my residence and told me what had happened.  Suzie was extremely upset at the time.”

96. Mr Glynn objects to the contents of paragraph 99 on the grounds that it is not descriptive of a relationship. Further he submits that there is no basis upon which I can be satisfied as to the probability of reliability.

97. I am satisfied that the representations made to Mr O'Toole were made in circumstances making it “highly probable the representation is reliable” as required by ss 93B(2)(b). The circumstances include that Mr O'Toole was very close to the deceased, saw her very regularly, it is difficult to see any motivation to make up such a story, other evidence suggests that other problems that she related to him were truthfully related, and his statement shows that their relationship was such that she shared with him many of the problems she was having with the accused.

98. However it seems to me that the deceased’s description of her opinion of the accused and of his activity in driving past her home and of ringing her enquiring as to the owner of any car outside her home is not particularly probative of the Crown case. There is no temporal connotation provided. It seems to me that although indicative, in a sense, of the relationship between the accused and the deceased it is prejudicial and not greatly probative.

99. The events related in paragraph 107 of Mr O'Toole’s statement in my view are admissible. They appear to be original evidence of what Mr O'Toole observed and not hearsay evidence of what he was told by the deceased. The fact that the deceased was complaining about the accused to the police on four or five occasions in 2005 is tied in with the evidence that will be led that domestic violence orders were obtained and is indicative of the fact that the relationship between the deceased and the accused continued to be a hostile one.

100. Again the activities described in paragraphs 108 to 112 indicate that the accused’s attitude to the deceased was a hostile one. No submission is made that the requirements of s 93B (in this case subsection (2)(a) would be relevant) are not met. In my view these passages are logically probative of the Crown case as they bear upon the bad relationship between the accused and the deceased in which the accused was aggressively hostile towards her. In my view the representations are admissible.

101. Mr O'Toole provided a third statement to police on 8 August 2005. An objection is taken to the contents of paragraph 3 which reads as follows:

“3.I recall in 2002 I was having a conversation with Suzie, I can’t recall the exact time or date but Suzie and I had just started dating each other.  Suzie told me that while she was dating Deon Wilson, a friend of mine, that they thought Scott and one of his friends broke the back window of Deon’s car while it was parked at his address at 3 Serocold Street, North Rockhampton.  She further said that this was why her and Deon had broken up because Deon blamed her and she was not going to be treated that why (sic) because it was not her fault.  Deon had had an argument with Scott about Andrew just prior to this happening.  Suzie said that she had paid for the window.”

102. In my view the objection is well made. As Mr Glynn submits, the representations made by the deceased to Mr O'Toole are not representations of a fact that the deceased observed but rather appear to be statements of hearsay upon hearsay and expressions of opinion about who may have caused damage to Deon Wilson’s car. In my view they are plainly inadmissible.

Trevor Thomas William Standing

103. Objection is taken to part of the statement of Trevor Thomas William Standing, the father of the deceased. The contested paragraphs read as follows:

“7.I remember that Sue was seeing someone at that stage [other parts of the statement make it plain that that was when Andrew was about two and a half years old so two and a half years before the deceased’s death] and he used to work at the prison farm.  He owned a Commodore sedan and it was damaged one night when it was left outside Sue’s place.  We all thought it was Scott but it could never be proven. 

8. I don’t know the exact dates but Suzanne has had two domestic violence orders between Scott and herself.  The first was when she was living at West Street Rockhampton however she cancelled the order.  The second time was when she lived at Blanchfield Street and as far as I know it is still current.  I remember that she attended the station and gave a statement to police about what had happened. 

…

11. I would go and visit Sue and Andrew about once a week.  We would talk about everything including how Scott had been threatening her.  She said that Scott had been telling Andrew to tell his mother that he was going to kill Mummy, the cat and Mick with a knife.  She said that this didn’t just happen once but it happened a couple of times.  In the last six months Andrew had been coming home from Scott’s and would just come up and hit and punch her and saying bad things.  These were things like “when you get home, hit Mummy, kill the cat and kill Mummy”.

104. The contents of paragraph 7 consist of speculation as to who might have caused the damage to the car and in my view are not probative of any fact in issue.

105. I cannot see the point of leading the contents of paragraph 8 of the statement. I understand the Crown is able to lead direct evidence of what orders were obtained. It is not apparent to me why Mr Standing’s knowledge of those orders is probative of any fact.

106. As to the contents of paragraph 11 the Crown concede that the contents of the third, fourth and fifth sentences are not admissible but maintain that the first two sentences are. Mr Glynn’s objection is that, taken together, the two sentences show that all that Mr Standing is relating is his daughter’s representations as to what her son Andrew has said as to what the deceased said to Andrew. If that was correct then in my view the evidence would not be admissible in the trial if the deceased was alive and cannot be admissible through the s 93B process. Statements of what the child says his father said to him are plainly hearsay and the deceased’s reporting of those statements to her father is hearsay on hearsay.

107. It may be that the contents of the first sentence go further than merely the reporting of Andrew’s statements to his mother. However in their present form they seem to be objectionable without at least some content as to what the threats might be that are being reported. In their present form I would not be prepared to admit the contents of paragraph 11.

108. Mr Standing provided an addendum to his statement on 8 August 2005. The contested parts of the statement are as follows:

“7.I also remember that when Sue was living in West Street although I can’t remember the number it was a highset home, white in colour in the middle and it had a brick fence with a pipe rail at the top.  Whilst she was there and before Andrew was born I remember going over to her place and she had brown to black bruising on her right arm which started at the elbow went up to and including her neck.  She stated that Scott had done it to her.  She didn’t say how just that he had done it to her. 

8. Around that time I remember getting a phone call from a male person he said he was Scott and he said words similar to, ‘You have a fucking slut of a daughter, she’s a slut around the town’.”

109. As these paragraphs relate to events that occurred five years and more before the deceased’s death, and pre-date their patching up their relationship, I am not prepared to admit them into evidence as not being sufficiently probative of any fact in issue.

Deon Nathan Wilson

110. Mr Wilson was in a relationship with the deceased in the period from September to December 2001. His statement relates to the problems that he had with the accused in that time. The disputed paragraph of the statement relates to Mr Wilson’s suspicions as to who had caused damage to his car on the evening of 5 November 2001. In my view his suspicions are not probative of any fact in the case and are not admissible.

Narelle Ann Hawkes

111. Ms Hawkes’ statement was taken on 6 September 2005. She relates that she had known the accused for about six months prior to the statement being taken. The disputed paragraph reads:

“7.I knew that he [ie. the accused]was having trouble with his ex regarding getting custody visits and access rights to his son Andrew.  I think Andrew was about four or five years old.  I met Andrew once only.”

112. Mr Glynn’s objection is that the source of Ms Hawkes’ knowledge is not revealed and hence in its present form cannot be admissible or probative of any fact in issue. In my view the submission is plainly right.

Rollan Andrew Gordon

113. Mr Gordon knew the accused. The disputed part of his statement reads:

“I recall 18 months to two years ago I had a conversation with Scott.  It was not long after I had split with my ex-defacto Kim Lynch.  Kim and I split up in 2004 and it was some time after this that I had come up to Rocky, had gone to visit Scott at his place in a flat at Capricorn Crescent in Oasis Gardens.  Scott lived there by himself.  I can remember having a conversation [with] him and it was to the effect that Scott said words to the effect of, ‘If you kill my missus I’ll kill yours’.  I am aware that he had said this to me before, it had been a couple of times, but I can’t remember when.”

114. Mr Glynn contends that the statement cannot be admitted as evidence of an intention to kill or an intention to procure a killing. He submits that the events related are remote in time and merely responsive to difficulties that Gordon was having with the break up of his relationship. In essence he submitted that the statement is highly prejudicial and not particularly probative and in the exercise of my discretion should be excluded.

115. Mr Pointing for the Crown submitted that the evidence gives an insight into the state of mind of the accused and his attitude towards the state of the relationship between the accused and the deceased. He contended that it was not so remote in time as to be excluded on that basis. He submitted that this conversation should be read in the context with other conversations to a similar effect.

116. If Mr Gordon has the date of his break up with his defacto accurately then the conversation with the accused occurred, at least, within a period of 17 months of the deceased’s death. In my view the accused’s statement to Gordon is admissible of evidence of the accused’s attitude to the relationship that he had with the deceased.

117. The fact in issue at the trial is, as I have said, whether the accused procured Hinschen to the kill the deceased. The issue is whether statements of this type make that fact in issue more probable than it would be without the evidence. In my view statements of this type add to the probability of the accused procuring Hinshcen and a logical connection can be seen between the fact asserted by the evidence (ie. the expression of willingness to kill if his “missus” was killed) and the fact in issue.

118. The only real concern I have about the admission of the material is the time that passed between the making of the statement and the deceased’s death. In my view that concern is met by the evidence, from a number of witnesses, of the ongoing hostility displayed by the accused towards the deceased in that intervening period. As I have observed statements of a somewhat similar kind were received in Wilson v R (although there the statements were made by the deceased to the accused that he had intention to kill her) 12 months and two years before the death. 

119. In my view the statements are admissible.

John Lewis Herbohen

120. The relevant parts of Mr Herbohen’s statement that are objected to read as follows:

“20.He never really mentioned too much about his custody matters.  All I know that he kept saying that it was costing him a lot of money to see his boy.  He’s going on about if Sue had accused him about something he would have to go to court to clear his name.

21. Sue is Scott’s ex-girlfriend and the mother of his child.  His child’s name is Andrew.  He is not at school yet so I would say that he’s about 4 or 5 years old.  I met Andrew a couple of times because I remember that Scott bought him to work for a week.  I remember that it was the beginning of the last holidays so about June 2005.  He never mentioned anything about Andrew being at work.  It was kind of like he bought him to work and no one said anything. 

22. Scott never spoke about any of his friends outside of work.  I could not even mention any of their names.  He said he used to work at the panel shop just down the road from us, I don’t know what this is called but he said that he had mates there.  Scott never mentioned friends at all.  I am always talking about my mates at work but all he spoke about was his son or his Mum and Dad.  I know that his Mum’s name is Jan Jobling ‘cause I used to take phone order for work from her.  I don’t know his Dad’s name but I know then own Endrust in Rockhampton.”

121. Mr Glynn’s objection is that the statements are irrelevant. He contends that they do not support any motive to kill or contain any expression of ill-will or of a wish to commit violence against the deceased.

122. On its own it is plain that the contents of paragraph 20 do not advance the matter very far. The Prosecution point is that has to be taken in the context with all the rest of the Crown evidence as demonstrating that the accused was concerned about the custodial matters and here he was expressing yet another facet of that concern namely that it was “costing him money to see his boy”. It is not entirely clear as to whether Mr Herbohen is meaning to say that Mr Jobling was asserting that the deceased had accused him of something or whether he considered it to be a possibility that she might do so. In either case it affords further evidence of a reason for the accused to be apathetic towards the deceased. In my view the statements are admissible.

123. The contents of paragraph 21 seem to me to be innocuous. They merely record that Mr Herbohen knew the accused well enough to know his son Andrew and he was aware who “Sue” was. I take it that the prosecution wish to lead the evidence in order to put Mr Herbohen’s evidence into context. I cannot see that it is prejudicial in any way to the accused and that appears to me to be a legitimate purpose for leading the evidence.

124. The contents of paragraph 22 seem to me to be irrelevant to any issue in the case and inadmissible.

Laraine May Simpson

125. Ms Simpson was a work mate of the accused at one time. The disputed parts of her statement read:

“10.We never spoke much about Sue.  I would ask about Andrew.  I knew though that he didn’t care for Sue, and I knew there was no love lost between them. 

11. I know that he had to pay her maintenance; it was a sore point with him.  I know that Scott was working for Sisleys, and that he had to pay $100.00 per week to Sue in maintenance. 

12. I also noted that he didn’t like it when Sue met a new man because he didn’t like another man being around his son.  I formed this opinion over a period of time and numerous discussions.  I can’t remember any particular conversation about either topic, but I know that was how he felt.”

126. Mr Glynn’s objection is that in paragraph 10 Ms Simpson is merely expressing her opinion without relating the basis for it and hence it is inadmissible. He submits that the contents of paragraph 11 are simply irrelevant not probative of anything. He submits that the contents of paragraph 12 are in the same category as paragraph 10 – a mere expression of opinion, even though said to be based on discussions, without the relating of the claimed conversations is inadmissible.

127. I agree with the defence submission in relation to the contents of paragraph 10.

128. In my view the contents of paragraph 11 are probative of a fact in issue. The fact that the accused did make complaint about the obligation to pay maintenance for his son is relevant to his attitude towards the deceased. It is not merely the fact that he paid maintenance but rather that it upset him that is the relevant point. It adds to the picture that the Crown seeks to paint that the accused had reason to want to be rid of the deceased. In my view the evidence is admissible.

129. As to paragraph 12 the fact that the accused did not like other men around the deceased is of course evident from other evidence relating to his attack upon the motor vehicles of Mr Wilson and Mr O'Toole. Mr Glynn’s complaint however is well made – the witness can speak about things that she observed of the accused’s conduct, or of statements that he made that reflect his attitude and state of mind, but it is a different thing entirely to express her conclusions without reference to what it is that she claims that he said or did. As I said in the course of argument I suspect that the witness might be able to give more detail than has been yet obtained but in the present form I consider that Ms Simpson’s statements are inadmissible.

Kelly-Elise Goldie-Williams

130. Ms Goldie-Williams had met the accused through her partner who in turn worked with the accused at Beckman’s Panel Works. She had known the accused for about two years by the time she gave her statement (which may have been given on 22 August 2005 although it is not clear). In her statement Ms Goldie-Williams relates an event that she says occurred on 12 December 2004 when the accused informed her that, “he had smashed in the car of a guy that was seeing Sue, but he never referred to her as Sue, he always referred to her as the ‘slut’ or the ‘bitch’”. The paragraph then following is the first disputed paragraph of her statement and reads:

“12.Scott told me about kicking another car at Sue’s place, I don’t know whether it was hers or not, but he seemed to have an issue with her having any other men in Andrew’s life.”

131. Mr Glynn objects on the basis that the statements are merely an expression of the witness’s opinion for which no basis is laid.

132. The Prosecution case is that two of the deceased’s male companions suffered an attack on their motor vehicles. One was O'Toole and the other Wilson. The evidence of Goldie-Williams links the accused to both attacks. Thus this evidence places other evidence into context.

133. The fact of the accused attacking the motor vehicles of the men in the deceased’s life is relevant, the Prosecution says, as demonstrating the controlling attitude of the accused towards the deceased which continued in various guises in the years leading up to her death. Whether the motor vehicle that the accused refers to as attacking at “Sue’s place” was the deceased’s or some other persons does not, it seems to me, matter. In either case it is an attack aimed at the deceased. The accused’s ongoing harassment of those close to the deceased, the Prosecution contends, adds logically to the weight of the Crown case that the accused was hostile towards the deceased and expressed that in many different ways one of which was this. I agree that the witness cannot be permitted to say that the accused “seemed to have an issue with her having any other men in Andrew’s life” without reference to the conversations or conduct of the accused on which the opinion is based.

134. This however must be read in the light of the contents of a later paragraph which reads:

“14.Scott told me that all he had to do was keep scaring her boyfriends away and he didn’t have to worry about Andrew getting another father”.

135. No objection is taken to that paragraph and it provides the basis for the opinion that Ms Goldie-Williams’ expresses. Indeed her opinion adds nothing to the direct evidence she can give of his statement.

136. In my view the evidence in paragraph 12 is admissible.

137. Further, objection is taken to the following paragraphs of Ms Goldie-Williams’ statement:

“15.When the last lot of custody issues that they had, it must have been early in this year (2005), I cannot recall what month, where he seemed to get a really good outcome, I said to him, well that sounds good and he seemed to be satisfied with it.  I said to him, ‘What if she left Rockhampton, would you leave to wherever that would be?’

16. He said, ‘No I would just kill her before I would ever let her take my boy away’. 

17. I said, ‘You’d go to jail and then Andrew would have no one?’

18. Scott said, ‘There’s people to do these things’.

19. He said that he would make sure that he wouldn’t get caught, and I thought it was all wind, because he said he could get people’s legs broken, you just had to know the right people. I thought he was just talking.”

138. Mr Glynn’s submission reads:

“Your Honour, that, with respect, is not admissible.  That’s simply a speculative question raised by the witness to which he replies relevant to that particular speculation.  There is no suggestion in this case that the deceased was ever intending to take the child away from Rockhampton and therefore the evidence is not relevant, but is highly prejudicial.”

139. In my view, that evidence is admissible. It would be difficult to think of more cogent evidence of the accused’s attitude to the state of the relationship between and his former defacto than his statement of a preparedness to kill her. The issue is not what the deceased intended to do in the future but rather what the accused thought the deceased might attempt to do and what his attitude might be to the ongoing custodial difficulties that he perceived he was having. Further, his statements suggest that he had put some thought into the matter and knew of people who could achieve his aim.

140. The jury might well think, as Ms Goldie-Williams thought, that this was “all wind”, but it seems to me the evidence plainly can go to the accused’s state of mind and attitude to the deceased. The timing of the statement can be, I assume, established reasonably well as the witness relates it to a resolution of some of the custody issues in the Family Court earlier in the year.

141. Further objection was taken to that part of paragraph 41 of Ms Goldie-Williams’ statement which reads:

“41.He was always a fanatic about the boy, it was like Andrew was something he owned and wasn’t a person.”

142. Mr Glynn objects that the disputed statement is merely an expression of opinion and irrelevant to any issue in the case. I agree with the submission.

Transcript of tape recorded phone message

143. The police obtained recordings from an answering machine device that the deceased kept. There were 10 messages. The only one of concern is that shown as “message 4”which records a male voice as saying:

“If you want a fuckin’ enemy you can have fuckin’ one, you are going to be a lonely fuckin’ bitch I tell you that, that with that attitude that little shit will have two heads and don’t you ever fuckin’ think about putting my name down as the father otherwise I’ll hold you in court for the rest of your fuckin’ life with custody battles, fuckin’ idiot.”

144. Mr Glynn objects to the receipt of the messages into evidence. As far as it is shown it is not known when the recordings were made. The inference from the message is that if it relates to Ms Standing’s pregnancy with Andrew then it was more than five years prior to her death and so too remote in time to be probative of any fact. Further Mr Glynn submitted that it is not shown that the voice on the tape is that of the accused. He submitted that it is evident from all the evidence that the deceased had a number of relationships over a period of time and it cannot be said that the only possible person who could have left the message is the accused.

145. In my view the objection is well made. It is little more than speculation as to whose voice it may be on the tape and if it is the accused’s voice, then it refers to a time, it would seem, prior to the birth of Andrew. If that is so then it pre-dates the accused and the deceased re-establishing their relationship, albeit for a brief period. In my view it would have little probative value and should not be received.

Diaries

146. Mr Glynn takes objection to those parts of the deceased’s diary for 2004-2005 in which the deceased set out things which she alleges that the child Andrew told her. He contends, accurately, that that such passages are no more than hearsay on hearsay and not admissible pursuant to s 93B of the Evidence Act 1977.  If I understood the Crown’s position it is not proposed to lead such material in evidence.

Conclusion

147. My rulings appear throughout these reasons.