R v Maglovski [2012] NSWSC 1378

Supreme Court New South Wales

Medium Neutral Citation: R v Maglovski [2012] NSWSC 1378 Hearing dates: 1, 5 and 6 November 2012 Decision date: 06 November 2012 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: Pursuant to s 137 Evidence Act 1995, leave to adduce evidence from the deceased's daughter as to a statement made to her by the deceased is refused. Catchwords: EVIDENCE - provocation - statement made by deceased to her daughter - s 65(2)(b) of the Evidence Act - whether representation made shortly after the asserted fact - s 65(2)(c) - whether statement made in circumstances that is highly probable that the representation is reliable - s 137 - whether prejudicial effect outweighs its probative value. Legislation Cited: - Evidence Act 1995 - s 65, s 135, s 137 Cases Cited: - Conway v R [2000] FCA 461; 98 FCR 204 Category: Interlocutory applications Parties: Crown (Prosecutor) Dragi Maglovski (Accused) Representation: Counsel: P.A. Leask (Crown) J.G. Spencer (Accused) Solicitors: Crown (Director of Public Prosecutions) George Sten & Co (Accused) File Number(s): 2011/321270

EX TEMPORE Judgment

Re admissibility of evidence (page 137 of transcript) 1Counsel for the accused, Mr Spencer, objects to the Crown leading evidence from the deceased's daughter concerning certain statements made to her by the deceased. 2The accused has been arraigned on an indictment which contains a single count alleging that he murdered his wife, Rosa Maglovska, on 8 October 2011. To that charge he pleaded not guilty to murder but guilty to manslaughter. 3It is clear from his counsel's opening that the only real issue in the trial is whether the Crown can negative the contention that the accused acted under provocation when he killed his wife. To this point in the trial the material which is said to give rise to the issue of provocation is to be found in the accused's interview with the police. In that interview he stated that he punched and stabbed his wife. He said that this was after his wife had told him that she wanted a divorce and spat in his face. He described a breakdown in the marriage which commenced at least around eight months prior to the killing when he commenced sleeping in another part of the house to his wife. Consistent with this, some evidence was given yesterday by his son that he had started sleeping in another part of the house some time in 2010. 4The Crown proposes to call evidence from the deceased's daughter, Ms Silvana Maglovska. She is expected to give evidence concerning her observations on the day of the killing and of her parents' marriage over a period of time. Subject to any objection he may make to a particular question, Mr Spencer has indicated he does not object to the Crown leading evidence of that kind. 5However, it is also anticipated Ms Maglovska will give evidence of a conversation she states she had with her mother approximately two weeks prior to her death. This morning I have heard evidence on a voir dire from Ms Maglovska which gives content to this disputed aspect of her evidence. 6In summary, she states that some time during 2011 her parents went to Macedonia in what she believed was an attempt to put their marriage on a more solid foundation. She says that, after they returned, for a short period her parents once again slept in the same bed, but that after a period of some weeks the accused was again sleeping in another part of the house. 7She stated that she was in that other part of the house and witnessed an argument between her parents about why her father could not sleep in the same room as her mother. She recalls that her mother hinted that there was some reason that her father knew about but which she would not state at that time. Ms Maglovska says that a few days after that argument she spoke to her mother. She states that she asked her mother, "Mum, why is dad sleeping downstairs?" and her mother replied, "Because he tried to strangle me in my sleep". She says she asked her mother, "Why, why did he do that?", and her mother said, "I don't know. I'm scared of your dad", and she said: "That's OK". 8Later in her evidence Ms Maglovska qualified the first question that she asked her mother as being, "Why is dad sleeping downstairs again?" This confirmed that the inquiry that she made of her mother was referable to the period after her parents had returned from their holiday in Macedonia. 9There was some confusion in Ms Maglovska's evidence as to precisely when that trip occurred. On the voir dire I heard evidence from the accused. He denied that he had ever attempted to strangle his wife. He also stated that the holiday to Macedonia was in May and June of 2011. The Crown did not dispute that timing of the holiday. Thus it seems the period in which they returned to sleeping in the same room was some time around June 2011. The conversation Ms Maglovska recites was said to have occurred two weeks prior to her death, i.e. towards the end of September 2011. 10The Crown submits that the representation said to have been made by the deceased that the accused had attempted to strangle her while she slept is relevant to so much of the issues in the trial as concern whether the accused lost his self control when he killed his wife on 8 October 2011. It was contended that it reflects upon his state of mind on 8 October 2011 that there was an earlier and serious incident of violence by him towards his wife. I will return to the question of relevance shortly. 11The Crown also accepts that it has to overcome the requirements of s 65 of the Evidence Act 1995 to allow evidence of this representation to be adduced to the jury. Subsections 65(1) and 65(2)provide: "Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was: (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable." 12Subsection 65(2)(a) is clearly not relevant, nor is s 65(2)(d). Instead the Crown relies on ss 65(2)(b) and 65(2)(c). 13I do not accept that the prerequisites to ss 65(2)(b) are satisfied in this case. They require that the relevant representation be made "shortly after the asserted fact occurred". While I have no doubt that has a flexible quality in relation to the issues that arise in a particular trial, in my view, the lapse of a period of three months is such that it could not reasonably be said that the representation was made within the period necessary to engage ss 65(2)(b). 14The Crown also relies on ss 65(2)(c). This has been held as imposing a very onerous test upon the Crown: see Conway v R [2000] FCA 461; 98 FCR 204 at [146]. The nature of the high test imposed upon the Crown is immediately apparent if one compares it to the requirements of ss 65(2)(b). With the latter, the Crown is only required to indicate the circumstances making it unlikely that the reputation is a fabrication, whereas the former requires the Crown to demonstrate that the circumstances make it highly probable that the representation is reliable. 15The concept of reliability is clearly much wider than the concept of a fabrication. In this case, I would have had no hesitation in finding that circumstances made it unlikely that the representation was fabricated by Rosa Maglovska but the question of reliability is more difficult. 16The "circumstances" relied upon by the Crown include the nature of the relationship between the maker of the representation and the receiver, that is mother and daughter. The Crown points to the circumstances in which it arose, namely that there was a fight between two parents at which the mother indicated she did not want, in front of their daughter, to remind the father of why it was he could no longer sleep in the bed. It was only a few days later, at the prompting of the daughter, that the mother disclosed why it was that he could not do so. These are strong "circumstances" pointing to the probability that the representation is reliable. 17Perhaps the strongest matter that might be said against that is that, ordinarily in the circumstances of a breakdown in a marriage, one can be somewhat suspicious of allegations made by one party against another. Nevertheless, given the context in which the witness described this representation, I am satisfied that s 65(2)(c) is made out. 18Mr Spencer also seeks the exclusion of the evidence under s 137 and s 135 of the Evidence Act. 19It is clear that if this evidence is led it would be very prejudicial to the accused. An allegation, as recounted by his own daughter, that he had previously attempted to strangle his wife would be expected to have an adverse effect upon any reasonable person sitting on a jury. No jury hearing that could think of anything other than poorly of him. That type of prejudice is of great concern in a trial of this kind. This must, however, be weighed against the probative effect of the evidence. 20I referred earlier to the statement by the Crown as to the relevance of this evidence. The Crown accepted that the evidence was not capable of supporting a suggestion that the accused's conduct, when he killed his wife, was premeditated. That would be absurd, given all the other circumstances that are known about the killing. However, it is submitted that it does throw some light on whether he had the necessary loss of control on the day in question to satisfy the test for provocation. 21The more one inquires into that proposition, however, the more difficult it becomes. This is particularly the case, given that we have no surrounding detail of the suggested act of the accused in attempting to strangle his wife. We do not know, for example, what conversation or conversations may have led to this. We do not know, for example, how persistent the attempt was, or how far it developed. There is no suggestion in the evidence of any injuries having occurred to the deceased at around the time the attempted strangulation is said to have taken place. 22It must be remembered that it is not inconsistent with the defence of provocation that, on an earlier occasion, the accused may have had a similar loss of self control. What would be inconsistent with the defence is a suggestion that the accused had planned for the event of the killing of his wife. 23When the allegation is considered as to what it truly is, namely a bare allegation, stripped of any context and divorced of any consideration of the injuries that surround it, I am left in a position that I cannot ascribe any substantial probative effect to this evidence on what is really the sole issue of fact in the trial, namely whether the accused, on 8 October 2011, so lost his self control by reason of the conduct of the deceased so as to kill her or to inflict grievous bodily harm upon her. 24Considered in that way, the prejudicial effect of this evidence, if admitted, would significantly outweigh its probative value. Accordingly, under s 137 I am compelled to reject the evidence and I so order. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2013