R v Fesus (No 3) [2015] NSWSC 1971

Supreme Court New South Wales

Medium Neutral Citation: R v Fesus (No 3) [2015] NSWSC 1971 Hearing dates: 15 October 2015 Date of orders: 15 October 2015 Decision date: 15 October 2015 Jurisdiction: Common Law Before: Wilson J Decision: Statements of KB, KD, RG and JN are admissible Catchwords: CRIMINAL LAW – evidence – voir dire – admissibility of evidence – accused's behaviour after deceased's disappearance – witness statements – whether evidence unfairly prejudicial Category: Procedural rulings Parties: Regina Steve Frank Fesus Representation: Counsel: J Crespo (Crown) N Carroll (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Nyman Gibson Miralis (Accused) File Number(s): 2013/207336 Publication restriction: Some names have been anonymised in the published judgment.

ex tempore Judgment 1. The Crown seeks to lead evidence of what are said to be advances made by the accused to women other than his wife, the deceased, at a time about and very shortly after the deceased disappeared. The Crown has tendered the statements of the relevant individuals and they have been marked as voir dire exhibits. I will not detail the contents for present purposes save to say they detail sexual advances by the accused to other women. 2. The basis of the objection to the evidence able to be given by two women who allege they were approached, in such a context, by the accused, goes to the absence of detail that the witnesses are able to give. The relevant witnesses are KB and KD. KB and KD were known to each other around the period of the death of the deceased and known to the accused. Each alleges that in the period immediately following the disappearance of Mrs Fesus, the accused conducted himself in what might be broadly categorised as a manner inconsistent with a man either concerned about the disappearance of his wife or mourning her loss. Each alleges that the accused propositioned her for sex, both individually, and collectively in what is referred to as a "threesome". 3. Ms Carroll, for the accused, takes objection to the evidence not, as I understand it, as to its relevance, but on the basis that the Court should invoke its discretion to exclude the evidence because it is unfairly prejudicial to the accused. The unfair prejudice that is relied upon is the fact that neither woman is able to give any specific detail of the conversations between each and the accused in which sex was discussed between them. Ms Carroll submits that in the absence of any detail as to the conversation, what was said by whom and in what context, it is impossible for the accused to test the evidence and thus he would be prejudiced. 4. Having read the statements and considering the proposed evidence in the context of the Crown case, it seems to me that the absence of the detail is not something which is unfairly prejudicial to the accused, and indeed, the detail is not what is relevant. It is not so much precisely what was said, but rather the fact of the subject having been raised at all, and the timing of the conversations. 5. As I apprehended it, the Crown would rely upon this material to go to the accused's demeanour and manner, that demeanour and manner being inconsistent with what might be expected of a distraught husband who has recently lost his wife in suspicious and troubling circumstances and, after the discovery of the deceased's body, conduct which is entirely inconsistent with what might be expected of a mourning widower struck by grief at the savage murder of his wife. In that sense the detail of who said what to whom is not especially relevant. Indeed it is the detail itself that may have some prejudicial effect, in that if evidence of conversations were led before the jury which went into chapter and verse of threesomes and what was sought and what was refused, that may well prejudice a jury, in that a jury could be shocked by it and take a dim view of such conduct. This could lead to some prejudice flowing to the accused. 6. The detail is not especially relevant; it is the fact of these approaches having been made and the time at which they were made. That goes to a fact in issue. The evidence is relevant and indeed the relevance of the evidence has not been challenged, in that the Court has been asked to exclude the evidence in the exercise of its discretion. 7. It is relevant to a fact in issue because what the evidence is capable of doing is giving the lie to the accused's claims about having had a good relationship with his wife prior to her disappearance, apart from what he described in his interview with police as "the usual ups and downs" that any couple may experience. It is capable of giving the lie to his claims of having loved his wife. It is relevant to go to motive in that, if the jury were satisfied on the evidence that the accused was unhappy in his marriage and wished to form relationships with other women, but felt restricted in what he could do because of the fact that he did not wish his wife to leave him and take their children, motive is clearly raised. 8. Admitted in the way that I have raised with counsel during submissions, that is, without salacious detail as to precisely what sexual activity was sought, I see no prejudice which is unfair prejudice to the accused. Unfair prejudice is to be distinguished from prejudice which flows ordinarily by the mere admission of evidence which has the tendency to support the Crown's case. 9. In relation to the evidence of KB and KD, I will allow that evidence the Crown seeks to lead, without detail of the precise nature of the sexual acts said to have been sought by the accused. 10. There was objection taken to paragraph 13 of the statement of RG, but the Crown has indicated he would not seek to lead that evidence, quite properly it seems to me. 11. In relation to the statement of JN, Voir Dire Exhibit B, objection was taken by the accused to the Crown leading any detail of sexual activity said to have been engaged in by the accused with that particular witness. The detail of it, as I see it, is not necessary and I indicated that to counsel during argument. It is the fact of it occurring and the timing at which it occurred rather than precisely the nature of the conduct said to have occurred that is of relevance. The Crown has indicated the evidence will be led on that basis and, having regard to that, the objection to that evidence has been withdrawn.