R v Popovic; R v Koloamatangi (No 4)

1. [1]

   Zlatan Popovic and Tevi Koloamatangi are both on trial for the murder of Dragan Sekuljica, who was shot dead in the early hours of the morning of 8 September 2007 in a nightclub in Wollongong. The Crown case is that Mr Popovic arranged for Mr Koloamatangi to shoot the deceased. The trial has proceeded before a jury since 7 August 2017. The two men were previously convicted of this offence following a trial in 2014 but a new trial was ordered by the Court of Criminal Appeal on 21 September 2016: Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202.

2. [2]

   On 25 August 2017, the Crown made application under s 65(2)(c) and (d) of the Evidence Act 1995 (NSW) to adduce evidence contained in two statements made by Mr Popovic’s former wife, Emily Popovic, who is now deceased, in 2012. Both accused object to the tender of this material. The Crown did not seek to adduce this evidence at the first trial.

The Crown case

1. [3]

   The Crown case is set out in R v Popovic; R v Koloamatangi (No 3) [2017] NSWSC 1110. It relies to a significant extent on the evidence of an “accomplice” witness who is known in these proceedings as Peter Taylor. He gave evidence in the trial over four days.

2. [4]

   Mr Taylor was a friend of Mr Popovic at the time of the murder and worked on a casual basis in a pizza shop owned by Mr Popovic’s mother. In the period leading up to the murder Mr Popovic had said to him that there was a “war” and asked him whether he was “with him”. Mr Taylor informed Mr Popovic that he was. At about the same time he was present with Mr Popovic when another person expressed hostility towards “Dragan” and called him a “dog”.

3. [5]

   Mr Taylor gave evidence that he saw Mr Popovic on the day that Dragan Sekuljica was murdered. Mr Popovic invited him to go to Kings Chinese Restaurant on Flinders Street in Wollongong for dinner. At the dinner were Zlatan Popovic and his wife, Tevi Koloamatangi and his girlfriend Emma, Zlatan’s cousin and another female. He described there being general conversation between everyone. Mr Taylor gave evidence that Mr Popovic and Mr Koloamatangi were “talking amongst themselves in a quite whispering” for about 20 minutes to half an hour and that Mr Popovic then spoke to him about giving Mr Koloamatangi and Emma a lift back to Sydney.

4. [6]

   He drove Mr Koloamatangi and Emma back to Sydney and dropped Emma off at The Rocks. He and Mr Koloamatangi then returned to Wollongong, where they went to Mr Popovic’s apartment. Mr Taylor gave evidence that Mr Popovic had asked them to go there when they came back from Sydney. Mr Popovic and his wife were in the unit. She was asleep on the floor of the lounge room by the television, lying on a mattress and a few pillows. Mr Taylor and Mr Koloamatangi went into the kitchen area of the unit, where Mr Popovic and Mr Koloamatangi started to have a conversation. Mr Taylor overheard that they were “…planning to go see a person by the name of Dragan” and “commit a crime against him”. Mr Popovic told them to pick up “something” from “Jason”. Whilst they were in the kitchen, Mr Popovic’s wife woke up and went to bed.

5. [7]

   The witness gave evidence of going to the home of Jason Hristovski and picking up a revolver contained in a rolled up bank bag and then going to his own home to pick up clothes for Mr Koloamatangi to wear to do the shooting. He stated that Zlatan Popovic called either him or Mr Koloamatangi to tell them that the deceased was at Splashes Nightclub. They did a couple of laps of Splashes and parked around the corner in the north car park. Mr Taylor pointed out bushes directly opposite Splashes where Mr Koloamatangi could wait for the deceased.

6. [8]

   He gave evidence that waited in the car for an hour and a half to two hours before hearing two or three shots fired. Mr Koloamatangi ran back to the car within one or two minutes. Mr Taylor gave evidence that Mr Koloamatangi asked him to call Mr Popovic to get the money, which he did. He gave evidence that he thought his phone was off and that it was not a call from his phone. Mr Taylor dropped Mr Koloamatangi off at his home in Mascot.

7. [9]

   CCTV footage shows that the shooting took place at about 3.01am. The Crown has tendered a table containing call charge records and reverse call charge records as part of its case. At 3:11 there is a telephone call from the phone service subscribed to Tevi Koloamatangi to that subscribed to Zlatan Popovic. This is the only call made to Mr Popovic after the shooting during the relevant time period.

The evidence of Emily Popovic

1. [10]

   Emily Popovic made a notebook statement to police on 7 November 2007 in which she stated that on the night of 7 September 2007 she and her husband went to Collegians for dinner, hired some videos, went home and then stayed in all night. She said Mr Popovic received a telephone call the following day telling him about the shooting at Splashes. The Crown does not seek to lead evidence of this statement.

2. [11]

   On 7 September 2012, she made further statement to police. The Crown seeks to tender the following passages from that statement:

3. [12]

   On 11 September 2012, she made a further statement to police. The Crown seeks to tender the following passages from that statement:

Evidence on the voir dire

1. [13]

   In addition to the statements of Emily Popovic, the Crown tendered various police investigator’s notes and police statements outlining police contact with Emily Popovic from 5 September 2012 until her death on 16 September 2012.

2. [14]

   Emily Martin married the accused Mr Popovic on 28 October 2007 and took his name. She was 26 years of age. She and Mr Popovic subsequently had two children.

3. [15]

   On 2 January 2012, the couple separated. The explanation for this is contained in her statement of 7 September 2012 in these terms:

4. [16]

   On 5 September 2012, Detectives Ritchie and Sanvitale made contact with Emily Popovic. She then made two signed statements with police on 7 and 11 September 2012.

5. [17]

   In her statement of 7 September 2012, she stated:

6. [18]

   In her statement of 11 September 2012 she stated:

7. [19]

   On 12 September 2012, Emily Popovic saw a solicitor in Nowra. She was very concerned and told him that her life was in danger. The solicitor told police that Emily Popovic was afraid “…of retribution for getting involved in the investigation.” That solicitor contacted police to confirm she was a witness rather than a suspect. Detective Senior Constable Ritchie then tried to make contact with her a number of times that day.

8. [20]

   On 13 September 2012, Detective Senior Constable Ritchie spoke with Emily Popovic. She was concerned about making the initial false statement. Police told her she was not in trouble and that she was a witness and not a suspect.

9. [21]

   On 14 September 2012, Detective Senior Constable Ritchie had another long conversation with Emily Popovic. She was fearful about having initially made false statements. She was described as being “fearful/paranoid”. She told police that she would not be telling her husband that she had made the statements.

10. [22]

    On 15 September 2012, Detective Senior Constable Ritchie spoke to Emily Popovic again. She stated that she could not really talk at that time but that she would call back later.

11. [23]

    On 15 September 2012, Emily Popovic telephoned general duties police. Constable Andrew Schmidt arrived at her home some time before 1pm. He described Emily Popovic as appearing “…very nervous, anxious and extremely paranoid.” She was described as having trouble “stringing words together” and as saying “…a couple of words every 10 second or so.” Her mother was with her and was described as being “no different” and “…just as nervous and paranoid.” He described Emily Popovic’s mother as pacing, chain smoking and having trouble stringing sentences together.

12. [24]

    Constable Schmidt was finally able to ascertain who Emily Popovic was and that “…she believed that her husband knew she was speaking to police (Homicide detectives).” She was observed to be “petrified” of her ex-husband. He formed the view that the stress and anxiety of being a witness in a murder investigation was making her extremely paranoid. He did not believe that she suffered from any mental health issues.

13. [25]

    At 9.14pm that night, Emily Popovic telephoned Triple-0 to report that there were five males with guns at her property. Police attended but could not locate anyone.

14. [26]

    At around 10:20am on 16 September 2012, she went into the bathroom to have a shower. She was in the bathroom for over 30 minutes. Her mother went in to check on her and found that she had cut her throat and her arms. She was already dead.

The hearsay rule

1. [27]

   Section 59 of the Evidence Act 1995 (NSW) relevantly provides:

2. [28]

   Section 65 of the Evidence Act relevantly provides:

3. [29]

   Clause 4(1)(a) of the Dictionary to the Evidence Act provides that a person is “unavailable” within the meaning of s 65 if they are dead.

Submissions on behalf of the Crown

1. [30]

   The Crown Prosecutor’s primary submission was that the evidence satisfied the terms of s 65(2)(d) of the Evidence Act. He noted that s 65(7) of the Act provides for an inclusive definition of when a representation is taken to be against the interests of the person who made it by setting out three circumstances in which representations are deemed to be against the interests of the person making them. He submitted that the statements made by Emily Popovic are in a similar category.

2. [31]

   It was submitted that the representations made by Emily Popovic contained in the police statements made by her were against her interest because of the effect that they would have upon her relationship with the accused Mr Popovic and also because she feared reprisals generally by being referred to as a “dog” for making the statements to police. That portion of her second statement extracted above at [18] was relied upon in this regard.

3. [32]

   It was conceded that not every person who makes a police statement in relation to a criminal matter does so against their own interest. The Crown Prosecutor used the analogy of a prison informer who makes a statement implicating an accused person. The statement is made “against interest” because of the potential risk to their safety of informing on another prisoner. It was submitted that that was a far greater disadvantage than any of the matters referred to in sub-s (7).

4. [33]

   Turning to the question of why the circumstances in which the statements were made make it “likely” they are reliable a number of matters were relied upon. First, it was submitted that she initiated the contact with police to provide the further information. Second, Emily Popovic explains in each statement why it was that she did not previously provide a full account to police. That is, it is not that her statements are untrue; simply that details were omitted from them. Third, in the statement she made in November 2007 she explains that she was reminded of the date by her husband and independently was able to recall it back in 2007. It was a date of some significance in that a person she knew was shot in a nightclub, which was an unusual occurrence not easily forgotten. There was no difference in the circumstances in which she made the four separate representations sought to be adduced by the Crown. All of them were made in the same circumstances.

5. [34]

   As an alternative argument, the Crown Prosecutor relied upon s 65(2)(c). He conceded that it is a difficult test to establish that it is “highly probable”, but submitted that the surrounding circumstances, including the fact that she had given a reason for not providing full information, the risk in which she placed herself, the status of her relationship, and the fact that she had two young children with the accused whom she wanted to have a continuing relationship with their father were all relevant circumstances in this regard.

6. [35]

   The Crown Prosecutor did not concede that the evidence relied upon suggested that Emily Popovic may have had mental health issues. There is a distinction to be drawn between being very frightened on rational grounds and being delusional.

7. [36]

   The Crown submitted that, notwithstanding the fact that she chose to take her own life on 16 September 2012, there is nothing to suggest that at the time of making the representations contained in the two statements she was anything other than rational and of sound mind.

Submissions on behalf of the accused

1. [37]

   Mr Brasch provided written and oral submissions in support of his opposition to the admission of the evidence. Counsel for Mr Koloamatangi adopted Mr Brasch’s submissions in their totality.

2. [38]

   The primary submission of Mr Brasch was that, although it may have been against Emily Popovic’s interest generally to assist police in this matter, that is not what is contemplated by the statutory language of s 65(2)(d) of the Act. It was submitted that the Crown had not addressed the specific representations and how, when looked at individually, each of them was against Emily Popovic’s interests at the time that it was made. It was submitted that it is not the correct approach to look at the circumstances in which the representations were made, rather than the text of the representations themselves, in order to assess whether they were made against the interest of the person who made them. The correct approach is to look at the terms of each representation in order to determine whether each of them is one that is made against the maker’s interest.

3. [39]

   It was further submitted that the material relied upon by the Crown suggests that, to the extent that Emily Popovic held any fears of her husband, they arose from a realisation on her part of his past criminal activity rather than the fact of her having made statements to police.

4. [40]

   Turning to the question of the circumstances in which the representations were made, it was submitted that those circumstances make it less rather than more likely that the representations were reliable. It was submitted that reliance upon Emily Popovic’s fear as a circumstance rendering the representations likely to be reliable is not the appropriate test; the test focuses on the circumstances in which the representations were made and not the general reliability of the person who made them.

5. [41]

   It was further submitted that the fact that the maker of a representation may be in fear of a person about whom the representation is made is not a circumstance that makes it either “highly probable” or “likely” that the representation is reliable. In fact it would often suggest the opposite. As for the Crown submission that there was nothing to suggest that Emily Popovic was not of rational and sound mind when she made the relevant representations, it was submitted that the absence of any evidence concerning her state of mind in the period from 5 September to 11 September 2012 cannot be relied upon to support an assertion that she was in fact of sound mind in that period. There is no explanation for the Crown’s failure to call evidence from police as to her state of mind during that period in circumstances when such material is clearly available.

6. [42]

   Mr Brasch submitted that what is clear from the evidence adduced on the voir dire is that Emily Popovic was extremely emotionally distressed from 12 September 2012 until her death four days later. The coroner found that she had been experiencing paranoia both in the lead up to her death and at the time of it. Although she told Constable Schmidt that she believed that her husband knew that she was speaking to police, the investigator’s notes of Detective Senior Constable Ritchie make it clear that she had not told him of this. It is unlikely that the extreme state of distress and paranoia exhibited from 12 September 2012 arose only after 11 September 2012. It is more likely that it was something that would have been brought on by police attendance on her on 5 September 2012.

7. [43]

   Even if the Court were satisfied that the terms of s 65(2)(c) or (d) had been satisfied, it was submitted that the evidence should be excluded under s 137 of the Evidence Act. If the representations were to be admitted, both accused have material available to attack the veracity of the representations but to do so would require them to elaborate on the fears held by Emily Popovic and this would be highly prejudicial to the case of each of the accused.

8. [44]

   The scope of s 65(d) of the Evidence Act was recently considered by the High Court in Sio v The Queen (2016) 90 ALJR 963; [2016] HCA 32. As the Court (French CJ, Bell, Gageler, Keane and Gordon JJ) observed at [60]:

9. [45]

   The decision in Sio v The Queen concerned the admissibility of representations made in an Electronically Recorded Interview with a Suspected Person (“ERISP”) in the trial of a co-accused.

10. [46]

    The High Court observed in relation to s 65 generally (at [55] – [57]):

11. [47]

    The High Court went on to observe at [63] – [64] (footnotes omitted):

12. [48]

    As for what may be taken into account when examining the circumstances in which a representation were made, the High Court observed at [69] – [72]:

13. [49]

    With these principles in mind, I turn to consider the admissibility of the relevant representations by Emily Popovic. In doing so, the starting point is to ascertain whether the material is relevant. That is, if it were accepted, whether it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the Evidence Act.

14. [50]

    Of the four representations sought to be adduced by the Crown, at least two are not matters that are in dispute in this trial. It is not in dispute as to who was at the dinner at Kings Chinese restaurant on the evening of 7 September 2007. Nor was it put to Mr Taylor in cross-examination that he did not visit Mr Popovic’s unit with Mr Koloamatangi at some time later that same evening. As for the telephone call made from Emily Popovic’s phone to Jason Hristovski, given its timing, it is open to the Crown to submit that an available inference arises that it was made by Mr Popovic, rather than Emily, in any event.

15. [51]

    The high point of the proposed evidence of Emily Popovic is that she recalls Mr Popovic receiving a telephone call in the early hours of 8 September 2007 at a time when it was still dark and the movie was still playing. After Mr Popovic took the call, he told her that someone had been shot at Splashes. On its own, this representation would not appear necessarily to amount to inculpatory evidence against the accused. The evidence already adduced at the trial shows that there were a number of people at Splashes that night who were friends with Mr Popovic. The mere fact that somebody had telephoned him about the murder does not necessarily implicate him in the shooting in circumstances where he knew the deceased.

16. [52]

    The reason that this part of Emily Popovic’s evidence has such significant probative value is that a schedule of telephone calls tendered at the trial (Exhibit O) includes a summary of all telephone calls made and received by Mr Popovic that morning. The only telephone call made to Mr Popovic at the relevant time that could have been the one described by Emily Popovic was from a mobile telephone registered to Mr Koloamatangi. Mr Taylor has given evidence that he used that phone to telephone Mr Popovic after the shooting to tell him that it had been done and requesting money for Mr Koloamatangi. In this way, the evidence as to what that call was about supports the evidence of Mr Taylor to a significant degree.

17. [53]

    Although the representations are all clearly relevant, they offend the hearsay rule in s 59 of the Evidence Act and are all thus inadmissible unless they come within the terms of s 65 of the Evidence Act. As for s 65(1), there was no issue that Emily Popovic is unavailable to give evidence. Nor was issue taken that notice of the Crown’s intention to adduce this evidence at trial had been provided on 3 August 2017 in compliance with s 67 of the Evidence Act.

18. [54]

    The Crown’s primary submission was that the representations are admissible because they were made against Emily Popovic’s interest within the meaning of s 65(2)(d)(i) of the Evidence Act and “made in circumstances that made it likely that the representation is reliable” within the meaning of s 65(2)(d)(ii).

19. [55]

    What is meant by making a representation that is “against the interest” of the person who makes it is not defined in the Evidence Act. Rather, three examples are provided in s 65(7) of the Evidence Act as to what are deemed to be representations made against interest. It is to be accepted that the definition is inclusive rather than exclusive and that the circumstances in which a representation may be made against interest are not confined to those set out in sub-s (7). Despite this, focus on the three types of representations set out in sub-s (7) is informative. In each of the three examples deemed to fall within this definition the representation itself is directly against the interests of the person who made it. That is, the representation itself damages the person’s reputation, implicates them in the commission of an offence or shows that they are liable in an action for damages.

20. [56]

    It was submitted by the Crown Prosecutor that representations made by Emily Popovic are similar to those in s 65(7) because she placed herself at risk of physical harm and also ran the risk of doing harm to her relationship. He relied upon the ejusdem generis rule in this regard. That rule provides that where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified. As I understand the submission, it is that the representations made by Emily Popovic should be read as being of a similar kind to those in s 65(7). The difficulty with this submission is that such a comparison in fact highlights why her representations are not of the same character as the three examples in s 65(7).

21. [57]

    All of the three circumstances in s 65(7), where it is deemed that the representations are made against the interest of the maker, involve representations that are directly against the interest of the maker. Unlike these three examples, the representations made by Emily Popovic are not themselves directly against her interests; only the fact of her making the statements to police per se is. To put this another way, it is not against the interests of Emily Popovic that her husband received a telephone call in the early hours of the morning on 8 September 2007. Nor is it against the interests of Emily Popovic that she went to a Chinese Restaurant the night before the shooting with a group of people that included both accused and Mr Taylor. Nor is it against the interests of Emily Popovic that Mr Koloamatangi visited the unit that she shared with Mr Popovic later that evening. Nor is it against the interests of Emily Popovic that she did not telephone Jason Hristovski that night.

22. [58]

    I am satisfied that, in making the statements to police that she did on 7 and 11 September 2012, Emily Popovic may well have potentially harmed any future relationship that she had with her estranged husband. I am also satisfied that she may have put herself in fear of retribution from her husband. In this way, I am satisfied that it was against her interests to help police in the manner that she did. But that is not what the statutory language of s 65(2)(d)(i) is directed at. It is directed at the representations themselves having a quality of being against the maker’s interests. Although the argument advanced by the Crown that any representation made by her that implicates the accused is against her interest appears at first blush to be a sound one, it ultimately directs attention to the circumstances in which Emily Popovic came to make her police statements rather than to the nature of the representations themselves.

23. [59]

    Although s 65(2)(d) has been judicially considered on a number of occasions, the provision is usually relied upon in circumstances where the Crown seeks to adduce evidence of representations that fall within s 65(7)(b). That is the situation that arose in Sio v The Queen, R v Suteski (2002) 56 NSWLR 182, R v Ambrosoli (2002) 55 NSWLR 603 and R v Williams (2000) 119 A Crim R 490. Counsel did not bring to the Court’s attention any decisions in which the sub-section has been relied upon in circumstances other than those set out in s 65(7) of the Evidence Act.

24. [60]

    It is undoubtedly the case that the enactment of s 65 significantly extended the common law. However, I am not satisfied that the definition can be taken to extend to representations that at face value are not against the maker’s interests even though they may indirectly lead the maker to feel that she has made the representations against her own interest.

25. [61]

    For these reasons, I am not satisfied that the Crown has established that the representations made to police by Emily Popovic concerning the night of 7 – 8 September 2007 were made against her interest within the meaning of s 65(2)(d)(i) of the Evidence Act. Having found that the representations were not made against interest, there is no need to go on to consider whether s 65(2)(d)(ii) has been established.

26. [62]

    The Crown’s alternative submission, in the event that I was not satisfied that the representations had been made against Emily Popovic’s interest, was that they nonetheless fell within s 65(2)(c) of the Evidence Act in that they were made in circumstances that make it “highly probable” that the representations are reliable.

27. [63]

    Prior to the decision of the High Court in Sio v The Queen, there was some uncertainty as to what assessing the “circumstances” in which a representation was made involved. The High Court has confirmed, in the passages cited above at [47], that in assessing the circumstances the court can have regard to events other than the making of the representations themselves. The focus is not on the apparent truthfulness of the representations, but on the objective circumstances in which they were made.

28. [64]

    It was properly conceded by the Crown that the test as to whether it is “highly probable” that the representations are reliable is an onerous test. In Conway (2000) 98 FCR 204; [2000] FCA 461, the Full Court of the Federal Court observed (at 244 [146]):

29. [65]

    I have had regard to all of the evidence, the principles derived from the authorities concerning s 65(2)(c) and the submissions of counsel and I am not satisfied that the Crown has established that the statements were made in circumstances that make it ”highly probable” that each of them is reliable for the following reasons.

30. [66]

    First, they were made over five years after the event in question. It is to be accepted that just because representations are not contemporaneous does not mean they cannot be reliable. Sub-section s 65(2)(b) deals specifically with representations made “when” or “shortly after” the asserted fact occurred. The other sub-sections make no reference to the timing of the representations, which leads me to conclude that delay in making the relevant representations is not in and of itself fatal to its admissibility. Despite this, five years is a considerable amount of time in the context of a requirement that the circumstances make it “highly probable” that the representations are reliable.

31. [67]

    Second, Emily Popovic changed the contents of her statements in circumstances where she had had a number of discussions with police during that time. For example, as between her two statements on 7 and 11 September 2012, she changed her version of whether Mr Taylor was at the dinner and whether anyone came to her house that night. Similarly her recollection of the telephone call has changed over time. I accept the Crown submission that the explanation for her gradual disclosure to police is consistent with her providing more information each time rather than retracting certain statements, but the fact remains that, for whatever reason, her version of events changed over time.

32. [68]

    Third, I have had regard to the evidence of the mental state of Emily Popovic during this period. I have read the statements she gave to police on 7 and 11 September 2012 in some detail. They are signed by her. There is nothing on their face to suggest any incoherence in the representations that she makes therein. It is somewhat difficult to reconcile the coherence of those accounts with the descriptions of her by police in the period from 12 September until her death on 16 September 2012. It is of significance, however, that Constable Schmidt did not describe her as exhibiting any mental illness when he saw her on 15 September 2012.

33. [69]

    I have had regard to all of this material and I am not satisfied that Emily Popovic was suffering from any delusions or mental illness as at the time she made her statements that would make them unreliable. It seems to me that a person can be pathologically frightened of something or someone without necessarily suffering from a mental illness. Although it is to be accepted that the coroner described her as paranoid, that does not necessarily mean that she was delusional. I have ultimately concluded, to the extent it is necessary for me to do so, that after making these statements to police Emily Popovic regretted doing so and became increasingly paranoid about the repercussions.

34. [70]

    The High Court in Sio v The Queen cautioned (at [71]), albeit in the context of s 65(2)(d)(ii), against focussing on circumstances that might assist the trial judge to conclude that a representation is unlikely to be reliable rather than the true concern of the provision, which is the identification of circumstances that of themselves warrant the conclusion that the representation is reliable notwithstanding its hearsay character. In this regard, my focus is not on unreliability but on whether her mental state makes it highly probable that the representations are reliable.

35. [71]

    I have also taken into account the circumstance that Emily Popovic made her police statements in which the relevant representations were made at some personal risk. That is, the fact that she made the statements knowing that Mr Popovic would consider her to be a “dog”. It was submitted on behalf of the Crown that this circumstance enhances the probability that the representations are reliable. Although this submission has some force, when considered in the context of the other circumstances, including the delay and the change in versions, it is not such as to satisfy the high test required by s 65(2)(c) of the Evidence Act.

36. [72]

    I note that Mr Brasch relied upon the fact that the representations were made at a time when Emily Popovic was estranged from her husband as militating against reliability. The evidence on this issue was somewhat unsatisfactory. The descriptions of the state of the relationship made by Emily Popovic are extracted above at [15] and [17]. I accept that as a general rule it is not to be presumed that representations made by an estranged partner who may have an axe to grind are inherently reliable. There may well be feelings of ill will and a desire for revenge on the part of the party who feels wronged in the separation. However, it seems to me that this factor is relevant to the question of the apparent truthfulness of the representations rather than their reliability which is not part of my role in this consideration: Sio v The Queen at [70].

37. [73]

    Finally, my role in ascertaining the admissibility of these representations is not directed at whether they are in fact reliable; it is directed at whether the circumstances in which they were made render it “highly probable” that they are reliable.

38. [74]

    Having had regard to the circumstances in which the representations were made, although I am satisfied that it is “likely” that those circumstances render them reliable, I am not satisfied that those circumstances render it “highly probable” that they are reliable.

39. [75]

    I am thus not satisfied that the evidence falls within either of sub-sections (c) or (d) of s 65(2) of the Evidence Act.