DPP v Barbaro (Ruling No 2) [2023] VSC 221 (1 May 2023)

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CRIMINAL LAW – Ruling – Evidence – Accused charged with murder of intimate partner – Whether the probative value is outweighed by the danger of unfair prejudice – Relationship evidence – Potential direction to jury – Jury Directions Act 2015 (Vic) ss 26 and 27 – Evidence Act 2008 (Vic) s 137.

1 On 20 April 2023, I delivered Ruling No. 1^[1] in this matter which concerned the admissibility of a number of representations made to various people by the deceased woman whom the accused is charged with murdering. Many of the representations alleged violence by the accused against the deceased. The issue was whether the prosecution had established that those representations came within the relied-upon exceptions in s 65(2) of the Evidence Act 2008 (Vic) (‘the Act’).
2 In the course of that ruling, I noted that in relation to some of the representations I had not afforded to Mr Nathwani a full opportunity to develop the secondary argument he wanted to make for the exclusion of the representations I had found to be admissible, under s 137 of the Act. This ruling, therefore, deals with that issue.

3 The group of representations where s 137 has not yet been dealt with are those which I found were admissible pursuant to s 65(2)(c) of the Act and were made by the deceased woman to two members of the Australian Federal Police at the airport in Cairns on 16 February 2020. On the basis of the Notice of Intention to Admit Hearsay Evidence filed by the prosecution these are representations 19 to 40.
4 As I said in Ruling No. 1, these representations are the deceased woman recounting a series of violent incidents which had occurred one or two days earlier at the hands of the accused at the hotel at which they were staying.
5 For the accused, Mr Nathwani has submitted that notwithstanding my conclusion on the issue of admissibility under s 65(2) of the Act, I should nonetheless, exclude this evidence pursuant to s 137 of the Act because the prejudicial effect of that evidence significantly outweighs its probative value.
6 He submitted that conclusion should also apply to two representations made to Mark Gray being numbers 47 and 48 concerning an assertion that the accused had attempted to choke her and when that occurred.
7 In relation to the Cairns matters, there were a number of reasons why Mr Nathwani submitted I should take that course.
8 First, although acknowledging the probative value of the evidence, Mr Nathwani referred to the reality that the maker of these representations cannot be cross examined.
9 Second, he argued that if the evidence is admitted, his client will be effectively forced into the witness box in order to deal with that material, bearing in mind that the deceased woman cannot be cross examined. Consequent on that submission, and apropos of several paragraphs of the prosecution opening, his submission was that the jury will misuse this evidence as tendency and coincidence evidence regardless of the directions that I would be required to give the jury pursuant to s 26 and following of the Jury Directions Act 2015.
10 Mr Nathwani added that the admission of the evidence would result in what he described as a ‘trial within a trial’ in order to challenge the truth of this evidence.
11 For the prosecution, Mr Bourke KC submitted that there will not be any attempt by the prosecution to use this evidence as anything other than context and relationship evidence. This, he argued, was the type of evidence that is not unusual in dealing with context and the reality of the relationship between the accused and deceased.
12 This is evidence which the prosecution wishes to rely upon to assist the jury to understand the context in which the offence of murder is charged. Such evidence may assist the jury to assess and evaluate other evidence in the case in a complete and realistic context. Such evidence can be used to explain the circumstances of the offence and prevent the jury from forming a false impression that the incident occurred out of the blue. It may remove the implausibility that might otherwise be attributed to the accused man's conduct.
13 It is clear that I must exclude this evidence if its probative value is outweighed by the danger of unfair prejudice. It is often emphasised that such evidence must be admitted with great caution because although it may be relevant it may only be minimally probative and have a high prejudice effect.
14 The evidence must relate to a state of affairs which is not too remote from the time of the offending indeed in this case that is a point of debate. Broadly, the evidence I am being asked to exclude occurs proximately to the death of the deceased woman.
15 The important thing about this evidence is that it must not be used for any form of tendency or coincidence reasoning by the jury. It is that risk that Mr Nathwani is concerned about.
16 This evidence would form part of what is described in s 26(d) of the Jury Directions Act 2015 which is as follows:

17 In this case, the prosecution rely on what was said by Heydon JA in R v Clark,^[2] where it was noted that where a case is entirely circumstantial it is common for relationship to be considered as one of the circumstances. Evidence of prior acts of violence by the accused to the deceased, prior threats of violence by the accused, and evidence of arguments and hostility beyond what might be expected in a normal relationship have all been admitted as relevant relationship evidence.
18 There is no argument that any of this evidence lacks probative value. The argument proceeds on the basis that be-that-as-it-may, the unfair prejudice of this evidence is substantial and outweighs that probative value. The onus of establishing this is on the accused.
19 If I find that is so, I must exclude the evidence. Whilst this is a balancing exercise, it is not discretionary. In McCartney v R,^[3] it was said that:

20 In this case, the facts in issue relate to the identity of the person who caused the death of the deceased and whether the prosecution can prove beyond reasonable doubt it was the accused.
21 Unfair prejudice arises when if there is a danger that, as Mr Nathwani submits, the jury will engage in illegitimate reasoning. The danger of unfair prejudice must be more than a risk or a possibility. It must a real danger of unfair prejudice. Importantly, it needs to be established that the risk exists despite proper judicial directions.^[4]
22 The particular judicial direction to be given in relation to such evidence is pursuant to s 27 of the Jury Directions Act 2015 because this is evidence that ‘is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed’. Section 27 provides:

23 The inability to cross examine the representor in a situation such as this is not always so unfairly prejudicial to outweigh the probative value of the evidence.^[5]
24 In assessing the risk of unfair prejudice, I consider the extent to which cross-examination of other witnesses, such as members of the Queensland Police might assist in challenging the hearsay representations of the deceased.^[6] The reality is that the assertions made by the deceased to those police are open to challenge through the evidence of those police by reference to inconsistencies and lack of supporting evidence for what she said to them.
25 In circumstances where the accused in this case raises as the primary issue the identity of the person who caused the death of the deceased, she being a person with whom he was in a relationship and had been for some time, I regard the representations made by the deceased to the police in Cairns as possessing significant probative value. I concluded in Ruling No. 1 that the circumstances in which they were made, made them reliable. I do not accept that that there is such unfair prejudice as to conclude that the jury will not follow and act on the directions they are given about the limitations on this evidence. I proceed on the basis that the jury will understand and follow my directions. As McHugh J said in Gilbert v R (2000) 201 CLR at 414:

26 That was not a case about the applications of s 137 of the Act but the principle applies generally. In my view, the probative value of the evidence is not outweighed by any prejudicial effect.
27 Having considered the submissions, I have therefore concluded that this evidence should not be excluded pursuant to s 137 of the Act.

28 Similar considerations apply to this evidence. In Ruling No. 1, I came to the following conclusion about two of the representations made by the deceased woman to the witness Mark Gray:

72.	On Monday, 20 April 2020, the deceased woman contacted Gray. He was to visit her at 2.00 pm, but she changed the time and he cancelled. The next day, at 2.20 pm, he went to her apartment and they spent about 10 minutes there before leaving. They walked and stopped at a bench and spoke for about 5 minutes. It was a windy day and the wind blew her scarf off. Gray says he could see a large “hicky” type mark on the right side of her neck. He asked her about it and she said the ‘ex had tried to choke’ her (Representation 47). She used her hands to demonstrate with her hand around her throat. She said that this had happened the night before, being 20 April 2020 (Representation 48).
73.	He asked her what he [the accused] wanted. She said that he wanted $25,000 from her. She did not say what the money was for. She said she did not have the money and he said he would settle on $10,000. She said his name was Ricardo (Representation 49).
74.	That night, he received calls from the deceased woman who, he says, was irate and upset. She wanted $100,000 (Representation 50). She said ‘I could really fuck you up.’ She said ‘I could tell police that you raped me.’ (Representation 51).
75.	He hung up on her. He later transferred $25,000 to her on the morning of 24 April 2020, which he said he did because he did not want to be charged with rape.
76.	On Sunday, 26 April 2020, he received a text from the deceased. In another message, she said ‘I don't want to lose you and I look up to you’ (Representation 52).
77.	On Sunday, 26 April 2020, he received a text from the deceased. In another message, she said ‘I don't want to lose you and I look up to you’ (Representation 52).
78.	Representations 50 - 53 are accepted to be admissible by the accused and presumably, will be relied upon.
79.	The only basis on which any of these representations could be admissible is pursuant to s 65(2)(c) of the Act.
80.	Applying the principles already discussed, the focus is on the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable.
81.	In my view, and applying that test, representations 47 and 48 are admissible under s 65(2)(c) of the Act. Representation 49, save for the words, ‘she said his name was Ricardo’ is not first-hand hearsay and, for that reason is inadmissible.
82.	Representations 41, 42 and 43 may also be admissible but without the need to hear further argument, I would exclude them under s 137 of the Act on the basis that their probative value is low and there is a risk of unfair prejudice.

29 Mr Nathwani has now submitted that I should exclude those representations 47 and 48 under s 137 of the Act, for the following reasons as he put it:

30 Endeavouring to understand that submission, I assume what Mr Nathwani is saying is that when Mr Gray gives evidence he will have to be cross examined about this and for the purpose of impugning the choking allegation that was made to him, it will be necessary to introduce representation 49, which I have already ruled is inadmissible as second-hand hearsay, where the deceased woman told Gray the accused wanted $25,000 from her but that he would settle for $10,000.
31 As things presently stand, Mr Gray can already by questioned to establish that apart from the deceased claiming the accused had tried to choke her, she had demanded a $100,000 from him and threatened to tell the police he (Gray) had raped her so her proclivity for extortion can be exposed. So far as impugning his evidence that the accused had tried to choke her the night before I do not, at present, understand how introducing representation 49 would assist in that cause.
32 I also note that Mr Nathwani made the following written submission about this matter on 17 April 2023:

33 All of those matters can still be raised in response to this evidence.
34 I will not exclude this evidence under s 137.

35 According to the Amended Summary of Prosecution Opening filed on 12 April 2023, on Sunday 23 February 2020, Ms Price and the accused went on a winery tour. During the day, an argument started between them and the accused slapped Ms Price across the face. Others on the tour witnessed this and sat with Ms Price on the bus as they returned to Melbourne. They tried to encourage her not to go with the accused in his car.
36 At about 6.45pm, their argument continued and escalated while the accused and Ms Price were in a black Ford Ranger utility the accused was driving along Spencer Street in Melbourne. The accused braked heavily causing a laceration above the deceased’s right eyebrow. Fearing for her life, Ms Price jumped out of the car at the corner of Spencer and Hawke Streets, West Melbourne. She fled onto the grass median strip. Members of the public came to Ms Price’s aid as she was covered in blood. The accused yelled at Ms Price to get back in the vehicle. Ms Price refused to get back in the car. The accused then accelerated the vehicle at Ms Price and the other members of the public on the median strip. Ms Price and the others had to run out of the way. The accused continued over the median strip and then drove off on the wrong side of the road. Ms Price was taken to hospital for treatment of her injuries. The laceration above her right eye required several stitches. The accused was in court on 6 March 2020 when the intervention order, protecting Ms Price was extended. The order prohibited any contact between the accused and Ms Price. Under the order he was not to commit family violence against Ms Price. The order remained in place until the time of Ms Price’s death.
37 Mr Nathwani has submitted this incident should also be excluded pursuant to s 137 of the Act. I agree. Whilst this may be interpreted as an act of violence by the accused against the deceased woman, it is potentially equivocal. The injury she suffered was not the result of an act of violence directed at her although that may have been the intention in the manner in which the vehicle was driven. This evidence does have some limited probative value but that is outweighed by the risk of prejudice which may arise from impermissible interpretation of the event.
38 On 26 April 2023, a supplementary defence response was filed by defence which provides that the accused will further state that he acted in self-defence when he caused the injuries to Ms Price. Notwithstanding that change, the risk of prejudice outweighs the probative value of this evidence in the circumstances.
39 I will not permit the prosecutor to introduce this evidence.

^[7] Transcript of Proceedings, R v Barbaro (Supreme Court of Victoria, S ECR 2021 0114, Judge Lasry, 20 April 2023) 141 - 142.

DIRECTOR OF PUBLIC PROSECUTIONS	Crown

v

RICARDO BARBARO	Accused

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	20 and 26 April 2023
DATES OF RULING:	26 and 27 April 2023
DATE OF REVISED RULING:	1 May 2023
CASE MAY BE CITED AS:	DPP v Barbaro (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 221

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Bourke KC with Ms S Locke	Office of Public Prosecutions

For the Accused	Mr R Nathwani with Ms F Fox	Haines & Polites Legal Practitioners