R v Ray (No 2) [2013] NSWSC 586

Supreme Court New South Wales

Medium Neutral Citation: R v Ray (No 2) [2013] NSWSC 586 Hearing dates: 22 April 2013 Decision date: 22 April 2013 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Evidence admissible Catchwords: CRIMINAL LAW - evidence - admissibility - relevance - evidence of previous assault - provides necessary context for charged acts - not unfairly prejudicial 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: Just after the court resumed after the luncheon adjournment today I ruled that certain evidence, to which objection was taken, was admissible. These were my reasons. 2The Crown alleges that the accused fatally assaulted the deceased, Ms Priscilla Perry, in the late afternoon of Saturday 9 April 2011 in a unit at The Entrance. The deceased had been living at this unit with Ms Shantell Dargan for about six weeks. Ms Dargan had been the girlfriend of the accused until he violently assaulted her in 2010 and went to gaol. An apprehended domestic violence order was made which, amongst other things, required the accused to stay away from Ms Dargan. Notwithstanding that order, the accused frequented the unit at The Entrance regularly. It would seem that he and Ms Dargan had resumed their somewhat turbulent relationship. It would seem as well that there was a turbulent relationship with the deceased as well. There had apparently been some physical fighting involving Ms Dargan and the deceased the evening prior to 9 April 2011. 3I note that the Crown does not intend to lead evidence of the prior assault upon Ms Dargan by the accused or the fact that he went to gaol. Earlier today I excluded evidence that the accused was the subject of the apprehended domestic violence order, it having minimal probative value which was outweighed by a danger of unfair prejudice. 4Dr Webb objected to evidence the Crown proposed to lead from Ms Dargan of events which occurred on the morning of 9 April 2011. They involved the accused assaulting Ms Dargan which prompted her to flee from the unit. 5According to Ms Dargan she and the accused fought on the morning of 9 April 2011. Their fight concerned arguments and fighting which had occurred the previous evening. A friend of Ms Dargan and the deceased, Ms Katie Wills, had stayed over. Ms Wills, according to Ms Dargan, intervened during an argument between the accused and Ms Dargan during the course of which the accused had spat on and hit Ms Dargan to the back of the head. The accused told Ms Wills to "stay out of it" and the accused made a threatening gesture towards Ms Wills. 6Ms Dargan continues in her statement, "I could tell he was angry. If I was to stay he would have gotten stuck into me, so I was out of there". 7She then describes how she fled the unit and the accused chased after her, pleading with her to return. She says that he said, amongst other things, "If you don't come back I'm gonna smash the friggin' house up. I'll flog Priscilla too". 8Ms Dargan managed to get away from him and he returned to the unit. 9I was informed that Ms Dargan left the unit at about 10.15am on the morning of Saturday 9 April. It will be alleged by the Crown that the fatal assault occurred at about 4.30pm. 10Ms Dargan was in contact with the accused by telephone during the ensuing hours. She said that in the course of these communications he said things such as: "I'll fucking smash the house up. Priscilla's going in the boot. I'm gonna flog Priscilla too". 11He also said: "Priscilla is arguing. I am wigging out. I am gonna drive Priscilla's car over". 12In the late afternoon there was another telephone conversation in which Ms Dargan says she could hear the deceased in the background. Ms Dargan asked the accused: "What's fucking going on? Is she all right?" 13The accused replied: "You'd better get here, I'm gonna wig out. Priscilla is carrying on. I can't handle her". 14I was also informed that there was to be evidence of a subsequent telephone conversation in a call by the accused, who was then in custody, to Ms Dargan in which he spoke of a "big build up of things", which culminated in the fatal assault upon the deceased. 15The Crown Prosecutor submitted that the evidence of the events transpiring between the accused and Ms Dargan on the morning of 9 April was relevant in that it provided a context or background to the events which occurred between the accused and the deceased later that day. 16Dr Webb says that whatever probative value the evidence had, it was outweighed by a danger of unfair prejudice. He said there was no issue about the accused engaging in certain aspects of the alleged assault upon the deceased, particularly kicking her. The danger of unfair prejudice was said to arise from a risk that the jury may reason that the accused had been aggressive towards Ms Dargan earlier in the day and had simply transferred that aggression later in the day onto the deceased. 17I am not sure that such reasoning would be unfairly prejudicial to the accused; but in any event it seems to me that the events concerning the accused and Ms Dargan earlier in the day on 9 April 2011 do provide a context for subsequent events, particularly statements made by the accused, such that those subsequent events and statements can be properly understood. 18The evidence has more than the minimal level of probative value contended for on behalf of the accused. I am not persuaded that there is a greater level of unfair prejudice. Whether there will be any unfair prejudice at all may be assessed in the light of all of the evidence, but it seems to me that any such danger that may be apparent can be suitably addressed by directions. Those were my reasons for holding that the evidence was admissible.