R v Ray (No 1) [2013] NSWSC 585

Supreme Court New South Wales

Medium Neutral Citation: R v Ray (No 1) [2013] NSWSC 585 Hearing dates: 22 April 2013 Decision date: 22 April 2013 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Evidence exluded Catchwords: CRIMINAL LAW - evidence - admissibility - evidence of accused being subject of an ADVO - limited probative value - potential for unfair prejudice Category: Procedural and other rulings Parties: Regina Jole Ki Ray Representation: Counsel: Ms H Wilson (Crown) Dr R Webb (Accused) Solicitors: Solicitor for Public Prosecutions Voros Lawyers File Number(s): 2011/117034

Judgment 1HIS HONOUR: The Crown alleges that the accused murdered Ms Priscilla Perry in a unit at The Entrance on 9 April 2011. Ms Perry had leased that unit jointly with Ms Shantell Dargan in February 2011. There will be evidence that the accused had been staying regularly with Ms Dargan at the unit from about the time it was leased up until 9 April 2011. 2The Crown proposes to lead evidence of the fact that at the time of the alleged offence the accused was the subject of an apprehended domestic violence order ("ADVO"), which had been made on 3 May 2010 and was in force for a period of two years. The order included conditions that he not go within 100 metres of premises where Shantell Dargan worked or lived and that he not approach or contact Shantell Dargan. 3The Crown contends that the evidence of the accused being the subject of the ADVO is relevant to put in context and provide a potential explanation for a number of communications made by the accused after the Crown says he killed the deceased. There are references in the communications to which I was referred to the accused speaking about the deceased having tried to call the police. The contention, as I understand it, is that the jury might better understand such references if they were aware that the accused was apparently in breach of the ADVO. 4Having reviewed the various communications to which I have been referred, it seems to me that the need to explain why it was that the deceased may have been minded to contact the police adds very little to the prosecution case; that is to say the probative value is limited. The fact that seems to be more important is that the accused was saying that the deceased was endeavouring to call the police and he responded in the way that he describes in these communications. 5There is potential for unfair prejudice in that, if the jury were aware that the accused was the subject of an ADVO, they may engage in some form of propensity reasoning or speculate about what conduct the accused had engaged in that brought about the making of the order. Of course, directions to the jury not to engage in such reasoning or speculation could be given but there would remain the possibility that the evidence would simply serve as a distraction, unnecessarily so given its limited legitimate value. In my view the probative value of the evidence is outweighed by a danger of unfair prejudice and so it is excluded.