R v Fesus (No 4) [2015] NSWSC 1972

Supreme Court New South Wales

Medium Neutral Citation: R v Fesus (No 4) [2015] NSWSC 1972 Hearing dates: 20 October 2015 Date of orders: 20 October 2015 Decision date: 20 October 2015 Jurisdiction: Common Law Before: Wilson J Decision: The evidence regarding the two allegations the deceased made concerning threats against her is admissible. Catchwords: CRIMINAL LAW – EVIDENCE – admissibility of evidence – evidence of past threats against deceased – prejudice to the Crown – undue waste of time – relevance 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: Names of some persons have been anonymised for publication

EX TEMPORE Judgment 1. In the context of a question asked yesterday of a witness who was a cousin of the deceased, Ms Hughes, an issue arose about the admissibility of two allegations the deceased made in her early teenage years concerning threats against her. 2. One allegation was made against a boy, TW, who was at school with the deceased. It was made when the deceased was aged about 13 years, so some five years prior to her murder. The allegation is recalled by the deceased's mother, to whom it was related by the deceased at some point. The deceased's mother has a recollection of her daughter telling her that a schoolboy related to her a threat said to have been made by a second schoolboy, TW, which was to "rape" and "stab" the deceased". There is no further information about that threat before the Court. It must have been, as noted, some five years or so prior to the deceased's murder and there is no evidence to suggest that TW was in any way in contact with the deceased at or about the time of her death. 3. The second allegation was made by the deceased against AA. The allegation, in broad terms, was that AA had sexually assaulted her, commencing when she was aged about seven years of age, proceeding in a short time to include full sexual intercourse, and continuing on until she was in her early to mid-teenage years. The deceased is said, and there is no issue with this, to have alleged that AA had on some occasion held a knife to her throat and a gun to her head, threatening her that he would either hurt or kill her should she tell anyone of the sexual assaults perpetrated against her. This threat was supposedly made contemporaneous to the alleged sexual assaults. 4. The accused seeks to lead evidence of these threats to establish motive to kill the deceased in a person other than the accused. 5. The Crown opposes the evidence being admitted, referring to the prejudice to its case should this evidence be led in that the Crown is, plainly, unable to call the deceased to rebut what is said to give rise to motive in others, and additionally, referring to the undue waste of time if the evidence is led. The Crown contends that should evidence of these allegations be led it will be necessary for the Crown to lead evidence which would allow the jury to properly assess the validity of these supposed threats and whether they in fact may have a role to play in the murder of the deceased. The Crown contends that that would lead to some significant lengthening in terms of the estimate of trial, an estimate which, I must say, has always been an issue in this matter, it having some fluidity between six weeks and twelve and a half weeks, the latter estimate of which would take the jury over the Christmas/New Year period. 6. Yesterday I admitted the evidence relating to the threat by the schoolboy but refused to admit the evidence of the threat made by AA, principally because it appeared that its admission would lead to a considerable amount of largely irrelevant evidence going before the jury and leading to a risk that the accused's trial for murder would become a pseudo trial of AA for child sexual assault. 7. Ms Carroll sought to have the relevant evidence placed before the Court after I made those rulings, they being made simply on counsel's account of the evidence, and to provide written submissions to the Court. Conscious that I had not seen the detail of the evidence, I permitted that approach, and this morning the Crown has tendered a volume of material relevant to the issue. The accused, through his counsel, has provided rather more considered submissions with respect to the accused's position, than were provided yesterday. 8. Having considered the further material I have decided to allow the evidence to be led in the form that Ms Carroll has outlined in her written submissions, that is, without evidence of the detail of the allegations of sexual assault, whether in relation to the schoolboy or AA, being led. 9. I note for the record that this is a defence which seems to me to be fraught with danger for the accused. Particularly in relation to AA, the accused runs the risk in raising matters of this nature, of the jury seeing and assessing these allegations as fanciful, and raised by the accused for no other reason than to cast a slur upon others and divert attention from himself. However, the accused is aware of the evidence that the Crown has in its possession. It has been served upon him and the accused is aware that the Crown is in a position to call evidence to demonstrate the unlikelihood of the material relevant at least to AA of establishing any motive to kill. I am unaware if there is anything relevant to the allegation connected with the schoolboy. 10. Without going into the detail, there being a volume of it, there is evidence that the Crown has available to it of a retraction made by the deceased of her allegation relevant to AA in 1994. The allegation was first raised on 21 September 1994. Only a little over a month later, by 26 October 1994, the deceased was living with AA and, within a matter of a couple of weeks of that, 10 November 1994, the deceased had indicated to a Department of Community Services officer that there was no difficulty in the Department coming to visit her whilst living at AA's home, and presumably making some sort of an inspection there. 11. It will become apparent to the jury, as I understand it on the available evidence, that between November 1994 and the murder of Mrs Fesus in August 1997 nothing had arisen between the deceased and AA to raise the matter again as a live or relevant issue. Indeed, it is not entirely certain that AA was aware of the allegations contemporaneously although he was certainly advised of them after the deceased's death. 12. The Crown is in a position to call evidence that the complainant retracted her allegation and that she told her sister that she had fabricated the allegation as a means of getting access to an accommodation subsidy available from the government. There is evidence that the police did not bring any charges against AA. There is evidence, which the jury has already heard, principally from AA's partner but confirmed by AA that in the years before her death it would appear that Mrs Fesus enjoyed a close relationship with AA and AA's wife. The evidence is that she visited their home frequently, staying on many weekends and overnight at AA's home, and that she was in telephone contact with AA's home frequently. There is no evidence that Mrs Fesus had expressed any fear whatsoever of AA after these matters ceased to be agitated in October and November of 1994. 13. The allegation in relation to the schoolboy, in my judgment, is fanciful and a jury may see it in just such a way. A jury may similarly assess the veracity of a claim that AA, who on all of the evidence was out of the jurisdiction at the date of the deceased's death and could not have been responsible for the murder as not just fanciful but as malicious. Therein lies the risk to the accused, however Ms Carroll presses this evidence. 14. Having raised it with Ms Carroll, I note that Ms Carroll has clear instructions from her client to raise the issue of the allegations against AA made in 1994, and to raise the issue of the asserted death threats by AA at that period. 15. That being the case, whatever the Court's view of the wisdom of that course may be, if the accused wishes to pursue it then it is not my role to cut off that avenue for him. I am advised by Ms Carroll that the evidence as to the schoolboy is not now sought to be raised and I simply note that for the record.