Supreme Court New South Wales Medium Neutral Citation: R v Gavin John De Beyer [2017] NSWSC 752 Hearing dates: 11, 15, 16, 17, 19, 22, 23, 24, 25, 26, 31 May; 1, 5, 6, 7 June 2017 Decision date: 13 June 2017 Before: Hidden AJ Decision: Relationship evidence admitted in part Catchwords: CRIMINAL LAW – trial – murder – husband accused of fatally stabbing his wife – his case that the stab wound was self-inflicted – admissibility of relationship evidence – admissibility under s 66A of the Evidence Act of material written by deceased about the relationship Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Conway v The Queen (2000) 98 FCR 204 Cvetkovic v R [2010] NSWCCA 329 R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 Category: Procedural and other rulings Parties: Regina Gavin John De Beyer Representation: Counsel: Crown – Mr K McKay Accused – Mr A Webb Solicitors: Crown – Director of Public Prosecutions Accused – Birchgrove Legal File Number(s): 2016/33235 Judgment – On the admissibility of relationship evidence 1. HIDDEN AJ: The accused, Gavin De Beyer, is on trial for the murder of his wife, Sharon Michelutti. He is alleged to have stabbed her fatally during the morning of 1 February 2016 at their home in Riverwood. Evidence in the Crown case establishes that she died from a stab wound to the abdomen, and that at about midday that same day the accused walked into the police station at Campsie, apparently distressed, and told the police that she had stabbed herself. Accordingly, the central issue in the case is whether it was he who stabbed her. On that issue the Crown case is circumstantial. 2. There is a body of evidence tending to establish that the marriage had not been a happy one, characterised by bitter arguments and violent and abusive conduct by the accused toward the deceased. It is common ground that the state of their relationship is relevant to the central issue. What must be resolved, however, is the nature and extent of the evidence admissible in proof of the relationship. The evidence the Crown relies upon has been collated in a tendency notice, it having been the Crown's intention to rely upon it to establish a tendency on the part of the accused to act violently towards the deceased, to make threats of violence, and to have a state of mind of hostility towards the deceased. However, it is agreed that I should determine at this stage whether this material is admissible as relationship evidence, and that a decision whether it is also available as tendency evidence can be deferred until later in the trial. 3. There are five children of the union of the accused and the deceased. On this issue there are statements of two of them: a daughter, Kalyra Michelutti, who was 19 years old at the time of the death of the deceased, and a son, Kye Michelutti, who was 17 at that time. 4. Kalyra's statements describe a pattern of arguments and abuse between her parents from when she was "quite little" until she started high school at the age of 11 or 12. They would "always fight." The accused would assault the deceased by throwing things at her, pushing her and punching her to the face with a closed fist. From the time Kalyra started high school the "fighting" continued but the accused stopped hitting the deceased. However, physical assaults started again, it would seem, about 5 years prior to her death. (Kalyra assessed this time by reference to the age of the youngest child, Tayla, who was then about 2 years old. Tayla was 7 years old at the time of her mother's death.) These assaults were not as intense, although they included the accused pushing the deceased around and head-butting her in the face. 5. Kalyra's account is that the deceased would argue really loudly with the accused, but she never initiated any of the physical fights. They used to fight between 4 to 5 times a week. They were violent fights, with the accused being the aggressor. At the age of 15 Kalyra left the home to live with an older brother, although she would visit her parents and her sister Tayla twice a week. At the age of 18 she returned to the family home. Her parents continued to have the same type of arguments, but from that period onwards she never saw the accused hit the deceased. However, there was an occasion about a year before her death when the deceased told her that the accused had tried to drown her in a pond in the backyard. When that event is said to have occurred is not clear. 6. Kye Michelutti was still living in the family home at the time of his mother's death. In his statements he described life in the family as "insane at times". His parents argued a lot and fought physically. He described the deceased being punched, kicked and hit by the accused. He also described one occasion when he saw the accused head-but her in the face. He was about 15 years old or so at the time, which would put it at roughly two years before the deceased met her death. He also heard the accused threaten to kill the deceased "heaps of times", and his mother saying, "he's gonna kill me." He never thought that his father would go through with those threats. 7. There is evidence that both the accused and the deceased smoked cannabis and at times took ice. Kye referred to this in his first statement and added, "I haven't actually seen them take it but there have been nights when they have been awake the whole night and would become super aggressive towards each other." On those occasions he observed them to become "a lot more aggressive" and to "argue to no end." 8. In a statement the accused's sister, Louise De Beyer, described a conversation with the deceased on Christmas day, 2012. The deceased told her that she and the accused fought all the time over nothing and that she could not stop herself screaming at him, especially when they had been using ice. She said that he would not let her out of the house or have a phone because he was scared she would call the police. She added that he had been violent to her and that it was getting worse. She described him pushing her into the walls and squeezing her arms. Ms De Beyer told the deceased that she should leave him and that she would help her do so, to which she responded that she "better not" because if he found her he would kill her. Ms De Beyer observed her to be angry and upset at the situation she was describing, to be crying, and to be looking genuinely scared. 9. There is also material relating to incidents on 6 and 7 August 2013, comprising statements to police made by the deceased and Kye Michelutti, together with the statements of several police officers. The incident of 6 August is described only in the deceased's statement. Put shortly, there was an altercation between the accused and the deceased in which he abused her, including calling her a "junkie", and broke her mobile phone. Later, he called her a "fucking dog" and threatened to kill her. 10. The remainder of her statement deals with the events of the following day, as does Kye's statement and the police officers' statements. Again put shortly, in the morning of 7 August she went to the Riverwood shops with Kye and Tayla and they caught a bus to Bankstown. The accused followed them in his car, and on two occasions he boarded the bus while it was stopped and demanded that the deceased give him money. On the first occasion, when she refused, he seized her handbag, searched it without finding any money, and threw it away. Ultimately, when they arrived at Bankstown railway station he confronted them in the street and again demanded money. Kye had phoned the triple O line from the bus and, in any event, police officers at a nearby regional office saw and heard the altercation and went to the scene to investigate. This led to the deceased and Kye making their statements to the police that day. 11. The inference is available that the accused needed the money he was demanding to pay a drug debt. 12. Before the statement was taken the accused told the police that she got "so worried" when the accused became angry, that she did not know what he was going to do, and that he had told her "heaps of times" that he would kill her. She expanded upon this in the statement, adding that in the past few months she and the accused had been having more and more arguments over money, which seemed to be escalating. During these arguments he had told her on numerous occasions that he was going to kill her, and tried to blame her for the problems that he was going through. She described herself as "simply scared" of him and that she tried to hide from him after they fought because he was "so strong and scary." 13. There are also two recordings of arguments between the accused and the deceased which she had made on her mobile phone. These were downloaded by police, and for present purposes I have edited versions of them on two discs. 14. Finally, there is a substantial body of notes and diary entries made by the deceased about the relationship, which were found at the Riverwood home after her death. These recount at length a pattern of behaviour by the accused comprising violence, threats and verbal abuse, together with controlling behaviour, withholding drugs from her and demanding money from her. 15. It will be seen that some of this material is direct evidence and the rest of it is hearsay. The direct evidence is the observations of Kalyra and Kye of their parents' conflict over the years, the evidence of Kye and the police about the incident of 7 August 2013, and the recordings the deceased made on her mobile phone of arguments between her and the accused. The hearsay evidence embraces the statement made by the deceased to Kalyra alleging that the accused attempted to drown her, her statement to police about the events of 6 and 7 August 2013, her conversation with Louise De Beyer about the relationship on Christmas day 2012, and the notes and diary entries made by her to which I have referred. 16. As to the assertions by the deceased to Kalyra, to Ms de Beyer and to the police, the Crown relies upon the exceptions to the hearsay rule to be found in s 65(2) and s 66A of the Evidence Act 1995. Representations of fact in that material are relied upon as proof of those facts, pursuant to s 65(2). Statements by the deceased about her feelings or state of mind are sought to be admitted pursuant to s 66A. As to the notes and diary entries made by the deceased, the Crown accepts that they could be admitted only as representations about the deceased's feelings or state of mind because they cannot be proved by a witness who "saw, heard or otherwise perceived" them being made, an essential requirement for the operation of s65(2): Conway v The Queen (2000) 98 FCR 204 at [149] ff (244-5), Cvetkovic v R [2010] NSWCCA 329 at [342]-[343]. 17. As to the direct evidence to which I have referred, the observations of Kalyra and Kye of parental conflict, and the evidence of Kye and the police about the incidents of 7 August 2013, are not objected to. Counsel have reached agreement on the material in the statements of those witnesses which is relevant for this purpose. One of the two recordings of the arguments between the accused and the deceased, identified as Disc 1, is also not objected to. 18. As to the hearsay evidence, the deceased's account in her statement to the police of the events of 6 and 7 August 2013 is not objected to. It is common ground that that material is admissible pursuant to s 65(2)(b) of the Evidence Act, being previous representations made shortly after the asserted facts occurred and in circumstances making it unlikely that those representations were fabricated. The statements made by the deceased to police about her relationship with the accused and his treatment of her generally is not objected to, subject to one exception. Counsel for the accused, Mr Webb, accepted this material is admissible under s 66A. The exception is her assertion that she was "simply scared of Gavin", and that she tried "to hide from him after we fight because he is so strong and scary." Counsel for the accused, Mr Webb, argued that her assertion of fear was not necessary in the light of other evidence to the same effect and that her saying that she tried to hide from the accused took it "to another level," and submitted that I should reject this material under s 137 of the Evidence Act. However, I do not see that its prejudicial effect outweighs its probative value so as to justify its rejection under that provision. 19. The rest of the tendered evidence is objected to. I have made rulings upon it, and these are my reasons for those rulings. 20. For the evidence that the deceased told Kalyra that the accused had tried to drown her in a pond ([5] above), the Crown relied on s 65(2)(c) of the Evidence Act, that is, that the representation was made in circumstances making it highly probable that it was reliable. In the second of two statements to the police Kalyra said that, while reading the deceased's notes and diary entries found after her death, she noted her mother's reference to the accused having tried to drown her. This sparked Kalyra's recollection of a conversation about a year previously, in which the deceased had made the same allegation to her. The child, Tayla was present at the time. Kalyra's account was that the deceased "said something like 'Dad tried to drown me in the pond'." Kalyra did not remember exactly what the deceased had said about this, but observed that she was "pretty upset" when she said it. 21. The Crown prosecutor argued that the circumstances of this incident, in which a mother confided to her daughters such serious misconduct by their father, gave that representation the requisite stamp of reliability. However, I am not persuaded that that is so. Kalyra's account of this conversation is brief, without elaboration, and her recollection of what her mother said does not appear to be firm. Moreover, it appears that she had forgotten the conversation until she was reminded of it when reading what the deceased had written. Making all due allowance for her long exposure to domestic violence between her parents, the fact that she needed to be reminded of this conversation about a year earlier, in which her mother had made such a serious allegation against her father, says something about the circumstances in which that allegation was made and calls into question its reliability. 22. In Conway (supra at [142]-[146] (243-4)), the Court contrasted the test for admission under s 65(2)(b), that it is unlikely that the representation is a fabrication, with that imposed by par (2)(c), that the representation is highly probable to be reliable. The latter test imposes a requirement which the Court described as "an onerous one": [146]. This evidence was rejected. 23. For the evidence of the deceased's conversation with Louise De Beyer (at [8] above), the Crown relies upon s 65(2)(c) in relation to assertions of fact, and s 66A for expressions by the deceased of her state of mind. Mr Webb objected only to two parts of this evidence: that the accused would not let the deceased out of the house or have a phone "because he was scared she would call the police", and that she would not leave him "because if he found her he would kill her." The objection was to the quoted passages on the basis that each of them is an assertion of the accused's state of mind, which would not be admissible under either of the Evidence Act provisions. 24. I allowed this evidence. As to the first passage, I think it reasonable to infer that the deceased, when saying that the accused was "scared she would call the police", was merely reporting what he said to her on the occasions when he would not let her out of the house or have her phone. As to the second passage, her saying that if she left him "he would find her and kill her" expressed her perception of his likely reaction. This evidence is admissible under s 66A as an expression of her fear of the accused. Of course, it is not evidence that he would in fact kill her if she left him, and the jury will be instructed accordingly. I shall refer to authority on s 66A when dealing with the notes and diary entries. 25. The second of the recordings of arguments between the accused and the deceased ([13] above) is largely an angry monologue by the accused, arising from a trivial matter, in which he appears to be complaining about the behaviour of the family generally. I accept Mr Webb's argument that it is not relevant to the relationship between the accused and the deceased, and I rejected it. 26. This brings me, finally, to the deceased's notes and diary entries. As I have said, this material could be admissible only under s 66A as evidence of her feelings or state of mind. There is a large volume of it. For the most part it contains representations of fact about the accused's behaviour towards her, including some very serious allegations such as his attempt to drown her and attempts to strangle her. It is not necessary for present purposes to recite these allegations in any detail. 27. The Crown tenders only selected passages from the whole of the written material which was found. This contains complaints by the deceased about the accused's violence and his threats, including threats to kill her. She also complains of controlling behaviour on his part, including control of her money and expenditure of it against her wishes, and withholding drugs from her. 28. The admissibility of evidence of this kind was considered comprehensively by Heydon JA (with whom Dowd and Bell JJ agreed) in R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494, at [77] ff. After considering common law authority, his Honour examined the effect of the Evidence Act, in particular s 76, the predecessor of s 66A: at [147] ff. 29. Mr Webb accepted that this written material is admissible to the extent that it contains the deceased's expressions of her feelings or state of mind about the relationship. However, the assertions of fact in the material vastly outnumber those expressions. Mr Webb argued that these representations of fact are not within the scope of s 66A. This is an issue which was referred to by Heydon JA in Clark at [147], but for the purpose of that case it did not need to be determined. 30. The view I take is that representations of fact in the written material would be admissible only in so far as they are necessary to elucidate the feeling or state of mind expressed. Accordingly, I allowed some general statements made by the deceased about the accused's abuse of her, physically and orally, and his controlling behaviour. Otherwise, assertions of fact by her were rejected. Those general statements require no greater elucidation because they are fleshed out by the other evidence of the accused's behaviour which I have admitted. 31. The written material which I allowed contains some assertions of the accused's state of mind, such as complaints that he thinks that he is allowed to abuse her in the way he does because he thinks that she deserves it. Here also, I am of the view that this material is admissible as evidence of her perception of his attitude towards her, which is relevant to her state of mind about the relationship. 32. Two other matters raised in the written material, which I rejected, should be referred to. The first is her complaint that the accused resented the birth of Tayla, which he saw as having ruined his life. The second is a suggestion that he might be having an affair with another woman. While those matters might bear upon her perception of the relationship generally, they do not involve the kind of abuse which is relevant to the central issue in the trial. Certainly, they are no more than peripheral to that issue and carry significant prejudice, justifying their rejection under s 137 of the Evidence Act. 33. It was on these bases that I approached the admissibility of the written material. There is no need to set out in detail the material which was admitted and that which was rejected, which I have provided to counsel in the form of a schedule. 34. As to the evidence I have admitted over Mr Webb's objection, he also submitted that it should be rejected under s 137. However, I consider the probative value of that evidence to outweigh any prejudice it might occasion to the accused. In my view, any such prejudice can be cured by appropriate directions to the jury. ********** 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: 21 June 2017