R v Fesus (No 6) [2015] NSWSC 1974

Supreme Court New South Wales

Medium Neutral Citation: R v Fesus (No 6) [2015] NSWSC 1974 Hearing dates: 18 November 2015 Date of orders: 18 November 2015 Decision date: 18 November 2015 Jurisdiction: Common Law Before: Wilson J Decision: The evidence is admissible. Catchwords: CRIMINAL LAW – EVIDENCE – conversations between the deceased and witness regarding a sexual assault against the deceased – admissibility – relevance – interests of the accused 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. This morning an issue arose as to the admissibility of evidence from Amanda Jane Goodman, her statement being tendered on the voir dire. With respect to that question were two statements from Ms Goodman, one made on 24 September 1997 and one made on 23 May 2000. The issue is whether or not the accused can lead from Detective Senior Constable Herft portions of those statements. 2. The portions sought to be included are from paragraph 4 of the second of the statements, that of 2000. The three sentences read, "On the occasions I spoke with Jodie, we would often talk about her upbringing and her feelings of abuse. Jodie was around 14 years of age at that time. The abuse Jodie spoke with me about were instances of sexual abuse. Jodie told me that AA had been sexually abusing her". 1. The accused additionally seeks to admit evidence which, as I understand it, is uncontroversial. It would simply be some contextual evidence to explain who Amanda Jane Goodman is, that being paragraphs 3, 4 and 5 of her 1997 statement. That gives the context that Ms Goodman was the mother of a school friend of the deceased. 2. The Crown objects to that evidence because the Crown submits that the evidence is not relevant to any fact in issue which is before the jury for determination. 3. As enunciated by Ms Carroll, the fact in issue is whether AA, made a threat to harm or kill the deceased in 1994. The accused submits that the conversation Ms Goodman had with the deceased in 1994 is relevant to the jury's determination of whether such a threat was made. The basis upon which Ms Carroll for the accused submits that that evidence holds relevance is to answer evidence that she contends was led by the Crown from the deceased's family members seeking to elicit an opinion as to whether family members believed the deceased's complaint of sexual abuse or not. 4. As I had done yesterday, I asked for transcript references to establish that the Crown had in fact led such evidence because that was not my memory of it. After some delay, the Court was pointed to transcript page 500, about line 01 and following on to line 05. That was evidence led in chief from the Crown which asked one of the deceased's sisters, Ms Belinda Wright, to give some evidence of a conversation she had had with the deceased about the complaint of sexual assault. 5. There is no issue that the complaint was made, the issue is whether that complaint has any relevance whatsoever to the current trial. 6. Nowhere in the portion of evidence that that Court was referred to was an opinion solicited from Ms Wright as to whether or not she believed her sister's complaint. 7. I have, myself, in the few moments that we took to have morning tea, reviewed the transcript of the evidence of those members of the family who gave evidence on the subject and none of them were asked in chief to provide any sort of opinion as to whether or not they believed the deceased when she made the complaint of sexual assault. 8. The Crown has led evidence, as it foreshadowed it would have to do when the issue of the admissibility of the sexual assault complaint was first dealt with, which goes to whether or not AA would in 1997 have had a motive to kill Jodie Fesus in relation to a complaint made by her, and retracted almost immediately in 1994. The Crown warned then that one of the consequences of allowing this area of evidence to be opened up would be to potentially divert the jury into consideration of what would ordinarily be an issue in a sexual assault trial, that is whether or not AA in fact sexually assaulted the deceased in 1994. 9. That, to my way of thinking, has never been a relevant question. The only question that could be relevant to the accused's trial for murder is whether or not AA may have had a motive in 1997 to kill the deceased. 10. The evidence led by the Crown to rebut that, and again this is evidence the Crown warned it would have to lead if this aspect of the case was opened by the accused, has gone to demonstrate that AA not only had no possible capacity to murder the deceased, in that he was in another State at the time, some nine or ten hours at a minimum's travel from the south coast of New South Wales, but also that there was nothing which had occurred between AA and the deceased in or about the time when the deceased was last seen in August 1997 to provide any possible basis for him to have sought her death. 11. Having opened up that issue in his case, the accused in cross-examination elicited evidence from a witness as to whether or not the witness believed the complaint was true. That should not have occurred; the opinion of the witness was not relevant, and it placed in issue the very thing which I had said was not relevant and should not be canvassed, that is whether or not the sexual assault in fact occurred in 1994. Notably, it was Ms Carroll who led this inadmissible evidence, not as she asserted, Mr Crown. 12. Having done that, having raised an irrelevant consideration and placed that consideration before the jury, Ms Carroll now contends that she ought to be entitled to lead evidence from Ms Goodman to the effect that Jodie Smith had told her in 1994 of the sexual abuse, to ensure unfavourable evidence she herself elicited. 13. The only thing that evidence can do is establish that Jodie Smith told some other person outside of the Department of Community Services and her family of the supposed sexual abuse by AA. It says nothing about any motive by AA to murder the deceased in 1997, indeed there is no evidence whatsoever that AA could even have known of the conversation between the deceased and Amanda Goodman in 1994. Had he known, there is no evidence that it could have contributed in any way to a motive he may have held to kill or otherwise harm the deceased. 14. In other words, the evidence is quite irrelevant. Ordinarily it would be excluded. However, having raised the issue in her cross-examination of witnesses, that is as to whether or not a witness believed the deceased's complaint, and put that issue squarely before the jury, it seems to me that the accused could be prejudiced if there could not be some answer to that evidence. That means that Ms Carroll will be permitted to lead evidence to answer and contradict inadmissible evidence that she herself led. 15. This comes at the very end of the Crown case and in circumstances where it is unlikely, even if one has regard only to time, that the Crown can possibly meet that evidence. 16. However, it is the accused who is on trial for murder and his interests have to be protected. His interests were not protected by evidence being elicited of a witnesses' belief or otherwise in the actual occurrence of sexual assault; it is now in his interests to have that evidence met. I accept that it works an unfairness to the Crown. 17. Accordingly I allow that evidence of those sentences that I have read out. I allow, should it be required, paragraphs 3, 4 and 5 of the statement of 24 September 1997, and should the Crown wish to do so, it seems to me the evidence contained in the balance of the statement of 24 September 1997 of conversations between the witness and the accused is admissible, whether the Crown seeks to lead it or not is entirely a matter for the Crown.