Supreme Court New South Wales Medium Neutral Citation: R v Castaneda [2015] NSWSC 964 Hearing dates: 14 July 2015 Date of orders: 14 July 2015 Decision date: 14 July 2015 Jurisdiction: Common Law Before: Wilson J Decision: 1. Evidence of Cassandra Lucas is admitted, although not in its current form 2. Invacare evidence is excluded. 3. Evidence of Stephanie Seracco is excluded. Catchwords: CRIMINAL LAW – evidence – voir dire Legislation Cited: Evidence Act 1995 Cases Cited: Elias v R [2006] NSWCCA 365 R v Cakovski [2004] NSWCCA 280; (2004) 149 A Crim R 21 R v Hajistassi [2010] SASC 111 R v PP [2002] VSC 523; (2002) 135 A Crim R 575 Re Knowles [1984] VR 751 Category: Procedural and other rulings Parties: Regina Marcela Castaneda Representation: Counsel: P Barrett (Crown) P Strickland SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Watsons Lawyers (Accused) File Number(s): 2013/56854 Publication restriction: Restricted to parties until a verdict is reached - Verdicts returned on 21 July 2015 and 30 July 2015 Judgment 1. HER HONOUR: Yesterday on 13 July 2015 the accused was arraigned on a charge that on 23 February 2013 at Cecil Hills in this State she murdered Gregory Peck. 2. The Court has today received evidence on the voir dire to resolve issues of admissibility of evidence sought to be led by one of the parties, which is objected to by the other party. The evidence in each case is from a witness who is resident in the United States of America and who is unavailable as a witness in this jurisdiction. 3. The accused seeks to lead evidence from Cassandra Lucas. The Crown seeks to lead evidence from Stephanie Seracco. There is an additional piece of evidence sought to be tendered by the accused referred to as the "Invacare evidence". The Lucas evidence 1. Tendered by the accused on the voir dire was a series of electronic communications in hard copy form between the accused and Cassandra Lucas in March 2010, which annex other electronic communications between the deceased and Ms Lucas which were sent between December 2008 and April 2009. Those documents are exhibits F, G, H and J on the voir dire. 2. The communication trail establishes that the deceased and Ms Lucas were involved in a relationship together in the period before the deceased came to live and work in Australia. They had lived together for a period of two or so years and there was at least initially, some prospect that Ms Lucas would join the deceased in Australia. 3. Although they maintained communication into 2009, Ms Lucas did not in fact travel to Australia, and the relationship ended. There appears to have been a period of some months, perhaps six or so months, when the deceased was both involved with the accused in Australia and in communication with Ms Lucas in the United States with a view to rekindling his relationship with her. 4. In March 2010 the accused contacted Ms Lucas electronically with a view to seeking information from her about the deceased. Although Ms Lucas was initially unwilling to communicate with the accused, she eventually did exchange messages with her via email and Facebook about her relationship with the deceased. The accused seeks to adduce the evidence of the email and Facebook trail to do a number of things. 5. The evidence is said to be relevant to the issue of self-defence. 6. It is contended that the evidence is capable additionally of establishing that the deceased had a tendency to be violent, particularly when affected by alcohol, with women with whom he was involved in a relationship, and that the evidence should be admitted pursuant to s 97 of the Evidence Act 1995. 7. It is additionally contended that the evidence is capable of rebutting evidence that may be led in the Crown case to the effect that the accused was possessive and jealous and irrational in her conduct to and connected with the deceased. 8. The accused further argues that the evidence is relevant to a proper assessment of the credibility of the deceased's account of his relationship with the accused in that it is capable of establishing that he was a less than reliable historian, particularly in matters connected to his relationship with the accused. 9. Finally, the accused suggests that the evidence is capable of supporting the credit of the accused and of making it more probable that the account that she gave to a Triple 0 operator, and thereafter to police, of the deceased attacking her prior to the stabbing which resulted in the deceased's death, is true. 10. The Crown objects to any of this evidence being adduced. 11. The Court was referred to three decisions from Victoria and South Australia, being: Re Knowles [1984] VR 751; R v PP [2002] VSC 523; (2002) 135 A Crim R 575; R v Hajistassi [2010] SASC 111. 12. I have additionally had regard to two decisions from New South Wales, both from the Court of Criminal Appeal, being: R v Cakovski [2004] NSWCCA 280; (2004) 149 A Crim R 21 and Elias v R [2006] NSWCCA 365. 13. Having considered the evidence and the submissions of the parties I have concluded that some but not all of the evidence deriving from Ms Lucas is admissible. 14. It seems to me that what is of relevance here is not the trail of communications per se, being communications in which Ms Lucas expresses her opinions of the deceased and portrays him in a less than favourable light, but the fact of what she communicated to the accused in March 2010, that being that: 1. the deceased was violent and aggressive when drunk; 2. that he had on one occasion dragged Ms Lucas across the floor by her hair during the course of an argument; 3. that he had on one occasion locked her out of the house when she was not dressed; and 4. that he had been verbally abusive to Ms Lucas during the course of their relationship. 1. Evidence that Ms Lucas told the accused these things about the deceased is in my view relevant to the issue of self-defence which is, it seems to me, the only real issue in the trial. 2. The accused's case is summed-up to a degree by her comment to a Triple 0 operator immediately after the deceased was stabbed, and by her account of the stabbing to the police officers who attended the scene at first instance, that material being before the Court as part of the Crown case statement. 3. That account is, in brief, that during an argument the deceased moved to hit the accused and, having obtained a knife, the accused stabbed the deceased believing that that action was necessary in her own defence. 4. Consideration of whether the Crown has proved its case to the requisite standard by negativing the issue of self-defence will include an assessment by the jury of the state of mind of the accused at the relevant time. 5. Is there a reasonable possibility that the accused believed her conduct was necessary in her own defence? 6. If there is, is there a reasonable possibility that what the accused did was a reasonable response to the circumstances, the circumstances being as the accused perceived them to be? 7. The information given to the accused by Ms Lucas is relevant to both questions in my view. 8. The first of the questions involves an assessment of the accused's state of mind, that being a wholly subjective consideration. The second, whilst the reasonableness of the response of the accused is to be assessed objectively, the question of the circumstances as she perceived them to be contains a further subjective element that falls to be assessed. 9. That the accused had been told by a former partner of the deceased that he was violent when drunk and had in fact been violent and abusive to her, that is Ms Lucas, is evidence capable of informing the assessment of the subjective aspects of self-defence. It is therefore relevant and admissible. 10. I do not regard the temporal lapse between the recounted events and the stabbing as significant in these circumstances. 11. The evidence however is not admissible in the present form of the email and Facebook communications. It may be that it can be led by way of a s 191 agreed statement of fact; through questions directed to the police officer in charge of the investigation; or, by way of tender of the relevant transcript from the committal hearing; but the document trail itself contains much which is inadmissible and it cannot be admitted in that form. 12. If led to support the credibility of the accused's account of the stabbing, the evidence must additionally be categorised as tendency evidence. 13. I have had regard to the provisions of s 97(1)(a) of the Evidence Act 1995 which refers to the requirement for notice. 14. Although no evidence has been led as to notice given to the Crown by the accused, I infer that s 97(1)(a) has not been complied with. Despite that, and quite properly in the circumstances of this case, where the Crown had until very recently proposed to lead the evidence of Ms Lucas itself, no issue was taken by the Crown with the lack of notice. The Court may, pursuant to s 100 of the Evidence Act 1995, dispense with the requirements for notice, and insofar as that is necessary I do so. 15. Evidence of the deceased's character, reputation or conduct, or a tendency to act in a violent manner towards female partners when intoxicated is not admissible unless, having regard to the evidence to be adduced by the accused, the Court thinks the evidence will have significant probative value. 16. In circumstances where the accused's case is to be one of self-defence, in my view the evidence of the deceased's character and reputation, and of his conduct towards Ms Lucas and the tendency to violence that that conduct is capable of establishing, will have significant probative value. The requirements of s.97 are thus met. 17. I have considered in reaching that conclusion the many authorities on the meaning of significant probative value. "Probative value" as defined in the Dictionary of the Act means "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". That is, the extent to which the evidence is relevant. "Significant" has been held to mean "more than mere relevance", but less than a "substantial" relevance. It also must be "important" and "of consequence": R v Lockyer (1996) 89 A Crim R 457; R v Lock (1997) 91 A Crim R 356. This formulation has been endorsed by the Court of Criminal Appeal in DSJ v R [2012] NSWCCA 9; (2012) 84 NSWLR 758 at [60] as the correct approach in relation to "significant probative value" as it applies to s 97 of the Evidence Act. 18. It is noted that s 101 of the Evidence Act 1995 does not apply in these circumstances because the tendency evidence that is sought to be adduced does not relate to any purported tendency the accused may have. 19. The evidence of what Ms Lucas said the deceased did to her (particularly when affected by alcohol) having met the test set out by s 97, is additionally admissible as tendency evidence. 20. Once admitted, the jury may use the evidence derived from Ms Lucas to assist it to assess the question of whether the Crown has negatived self-defence. It is clearly relevant to that assessment. 21. The evidence admitted on these bases may be further admissible pursuant to s 108A of the Evidence Act 1995 as the accused contends, but it seems to me that it is premature to decide that issue at this stage, before the detail of the Crown case and any evidence to be led of representations made by the deceased concerning the accused, is known. It is similarly premature to determine the question of whether the evidence is available to rebut aspects of the Crown case. That will depend upon the evidence led by the Crown before the jury. These issues can be reconsidered later in the proceedings if necessary. The Invacare evidence 1. It is convenient to deal with that evidence here in that it is further evidence sought to be led by the accused as relevant to an assessment of the deceased's credibility as an historian. 2. Exhibit K is a series of documents concerning purported misconduct by the deceased in the course of his employment in late 2008. The relevance of the material is said to be to demonstrate the deceased's unreliability as an historian, with that unreliability said to extend to the deceased's account to others of his relationship with the accused. 3. In email exchanges with Ms Lucas in April 2009, which is part of exhibit F on the voir dire, the deceased told Ms Lucas that his employment in Australia had been "cancelled" before it began because of (what I take to be a reference to) the global recession. The deceased complained in that email to Ms Lucas of impecuniosity, to the point where he was homeless. 4. The contents of exhibit K, being the Invacare evidence, make it clear that the deceased's account of his circumstances was false. The accused contends that the evidence in exhibit K, coupled with that in exhibit F, demonstrates that the deceased was not someone whose accounts of his personal circumstances should be accepted. 5. I have already ruled that exhibits F, G, H and J are not admissible in their present form; that is by tender of the emails and Facebook printouts themselves. It is not the messages that are relevant, but the information conveyed to the accused about the deceased's former violence to Ms Lucas and the nature of that purported violence. Accordingly, the email concerning the deceased's unemployment and the circumstances and consequences of it is not of itself relevant. 6. There is thus no need to adduce the evidence contained in exhibit K to demonstrate that the account given in exhibit F by the deceased is a lie. 7. This evidence really amounts to no more than evidence of bad character, which is led to establish that the deceased was not a person to be believed; that is, that he was a person lacking in credit. That sort of evidence is not ordinarily admissible. 8. Section 102 of Part 3.7 of the Evidence Act 1995 applies. Although the deceased is not a witness as referred to in s 101A, he is in my view what is referred to in that section as an "other person", and so the provisions of the Evidence Act with respect to credit apply to accounts of potentially relevant matters purportedly given by the deceased to others. As a consequence, evidence going to the deceased's credit is not of itself admissible. 9. It may be that the Invacare evidence becomes relevant because of some feature of the Crown case when it is called before the jury. At this stage, however, I am not persuaded that it falls within any relevant exception to the credibility rule and I decline to admit the Invacare evidence. The Seracco Evidence 1. The final piece of disputed evidence is that sought to be adduced by the Crown, being the evidence of Stephanie Seracco. 2. Ms Seracco, like Ms Lucas, is a resident of the United States of America. She first met the deceased in 1998 and, as a friend, maintained contact with him until very shortly before his death. In a statement, which is exhibit E on the voir dire, Ms Seracco refers to a conversation that she had on the telephone with the deceased in March 2011. 3. At [13] of her statement, Ms Seracco says that on an evening in March 2011 she received an incoming call from the deceased and, in the subsequent conversation she had with him, he told her about an incident which had just transpired. The material parts of the conversation are that, at that time, March 2011: 1. the deceased told Ms Seracco that he had been involved in a fight where there was a bottle thrown and some glass broken; 2. that the fight was between he and the accused and both had been drinking; and 3. that both the deceased and the accused had "put their hands on each other during the fight". 1. As that recitation makes plain, Ms Seracco's account of what she was told is sparse of detail. 2. The Crown contends that this evidence is relevant to put in context other evidence which it will call as part of the Crown's obligation to put all relevant evidence before the jury. That is evidence that in March 2010 police obtained an apprehended domestic violence order for the protection of the accused from the deceased, after an allegation from the accused that the deceased had put his hands to her throat and attempted to choke her. 3. I am informed by the Crown that the narrative that formed part of the application for the apprehended domestic violence order contains no reference to a bottle having been thrown or glass smashed. 4. The Crown says Ms Seracco's evidence of what she was told in March 2011 of an incident that had just occurred puts this evidence of the apprehended domestic violence order incident into context in that it shows that both the deceased and the accused dealt with each other violently. The Crown says that because there was only one occasion when police were involved with the deceased and the accused, the incident recounted by Ms Seracco and that recorded by police must be the same, despite the factual differences in the two events, and despite the difference in time of one year. 5. Insofar as it says anything about the accused's conduct towards the deceased, that is no more than that she had put her hands on the deceased during an argument. Who threw the bottle and in what circumstances is not established, and nor is there any explanation of what it may mean for the accused to have put her hands on the deceased during an argument. 6. Even if one accepts that the incident recounted to Ms Seracco in March 2011 and that which occurred in March 2010 are the same - and I for one, do not draw that conclusion - the former can say little, if anything, about the latter, and it fails to place it into any meaningful context in my view. The detail is wholly absent so as to render what was said to Ms. Seracco devoid of ascertainable meaning. 7. The evidence fails to meet the test of relevance set out at s 55 of the Evidence Act 1995 and I reject it. ********** 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: 07 August 2015