R v So (No 2)

1. [1]

   HIS HONOUR: The accused, Kylie So, was arraigned in the Supreme Court on 2 September 2022 on a charge that she murdered Robert Dickie at Elong Elong between 14 and 15 June 2016. The trial commenced at Dubbo, to be determined by Judge alone, on Monday 14 August 2023. At the commencement of the trial, the parties sought a ruling as to the admissibility of certain hearsay statements proposed to be led by the Crown, pursuant to s 192A of the Evidence Act 1995 (NSW). During the voir dire, it became apparent that the relevance of some of those statements in the Crown case constituted tendency evidence. The Crown sought leave to admit the evidence on that basis by serving upon the defence a late notice of intention to adduce tendency evidence (the tendency notice), which was later amended (the amended tendency notice). In view of the partial evidentiary overlap, I have considered the admissibility of the hearsay and tendency evidence sequentially and in the same judgment.

2. [2]

   The accused does not concede that Mr Dickie is deceased. Accordingly, I shall refer to the alleged victim as Mr Dickie. The Crown Case Statement, insofar as it is relevant by way of background to the applications, is to the effect that at the time Mr Dickie disappeared, he had resided alone on a rural property at Elong Elong (Mr Dickie’s property) for some years. He was last seen alive on the morning of Tuesday, 14 June 2016, when he and the accused, who had been staying with him since Saturday 11 June 2016, visited the home of a neighbour. Mr Dickie’s mobile telephone last triangulated to a cell tower, which was near Elong Elong, shortly before 3pm on Wednesday, 15 June 2016.

3. [3]

   A family member reported Mr Dickie’s disappearance to police on the evening of Wednesday 15 June 2016. Police attended his residence later that night and on multiple occasions in the following weeks and months without success in determining the whereabouts of Mr Dickie or, if he is deceased, his remains.

4. [4]

   The Crown case is that the accused killed Mr Dickie by physically attacking him while they were alone at his residence at a time between their return from visiting his neighbour on 14 June 2016 and the time that police attended Mr Dickie’s property the following day. The Crown alleges that in attacking Mr Dickie, the accused’s intention was to at least cause him grievous bodily harm. Her alleged motive was anger. She had travelled from New Zealand at Mr Dickie’s invitation with an expectation that he was committing to a long-term relationship with her but following the visit to a neighbour on 14 June, Mr Dickie told her that she could not stay with him on an ongoing basis, which enraged her to the point that she fatally assaulted him.

The hearsay application

1. [5]

   Following receipt of the Prosecution’s Notice pursuant to s 141 of the Criminal Procedure Act 1987 (NSW), the accused notified the Crown that it objected to certain hearsay statements said to have been uttered by Mr Dickie, which are referred to in the Crown Case Statement as follows:

2. [6]

   The Crown issued notices in accordance with s 67 of the Evidence Act identifying certain hearsay evidence it sought to tender, pursuant to ss 65(2) and 66A of the Evidence Act as alternative bases for admission as an exception to the hearsay rule (the hearsay notice). The accused does not dispute that the Crown gave reasonable notice in writing of its intention to adduce the evidence that was the subject of that notice.

3. [7]

   In a statement to police dated Sunday 19 June 2016, Susan Carter stated that she had known Mr Dickie for about 30 years, over which time they had become friends. She recalled a phone conversation with him on 9 June 2016 at 9:17am:

4. [8]

   The Crown seeks to rely upon the italicised words as to Mr Dickie’s state of mind, at least as of the time he expressed his intention, and will submit that he maintained it until the time the accused allegedly killed him, which was five to six days later.

5. [9]

   Annette O’Reilly is one of Mr Dickie’s three siblings. In a statement to police dated Thursday 23 June 2016, she stated that she spoke with Mr Dickie “on the phone at least once a week leading up to his disappearance”. She stated:

6. [10]

   The Crown tendered 15 pages of extracts of email correspondence that had been gathered by screenshots of selected emails, or parts of emails, on Mr Dickie’s iPad between him and two women in the period between 14 April and 9 May 2016. One line of communication was with “Tatjana”, who said she was 29 years old. The other correspondence was with Ekaterina, who said she was 32 years old. Both women wrote that they lived in Russia. In separate emails, both dated 15 April 2016, Mr Dickie wrote to each woman in different terms, but in both, he declared his love for the recipient. He invited Tatjana to travel to Elong Elong where he could “look after” her, and invited Ekaterina to “come here whenever you … want Honey & stay for as long as you want & let me look after you”.

7. [11]

   In ensuing emails, Tatjana purported to accept his offer and requested €200 to facilitate her travel. On 6 May 2016, she wrote that she was at an airport and coming to Australia for ten days. She was still waiting on the €200 from Mr Dickie which she needed to demonstrate to the “Customs Committee” that she had sufficient funds for the ten day trip. In his responses, Mr Dickie relates difficulties in sending her the money; he did not confirm that he had done so. The tone of Mr Dickie’s emails to Tatjana deteriorated, with an accusation by him in an email dated 3 May 2016 that she was a “scammer” and in a brief email dated 6 May 2016, he made a derogatory sexual insult. There is no tendered email extract that confirms that Tatjana in fact came to Australia or that she did not travel to Australia.

8. [12]

   While the Court was reserved on the issue of the hearsay application, the trial proceeded. One of Mr Dickie’s sons, Darren Dickie, gave evidence in chief, without objection, as to what Mr Dickie had told him about his short-term relationships (although the evidence was first-hand hearsay, since there was no objection to it, the evidence was admissible: Dogan v R [2020] NSWCCA 151 at [19]). This topic was further explored in cross-examination, during the course of which Darren Dickie gave evidence of a prior representation made to him by his father that was similar to that alleged by Annette O’Reilly:

9. [13]

   Gary Weavers and his wife Sandra Weavers were neighbours of Mr Dickie. In a statement dated Sunday 19 June 2016, Mr Weavers stated:

10. [14]

    In a statement dated Sunday 19 June 2016, Ms Weavers stated:

Relevant legislation

1. [15]

   It is accepted that the foregoing constitutes evidence of previous representations for the purposes of s 59 of the Evidence Act (the hearsay rule), which relevantly provides as follows:

2. [16]

   The Crown submitted that the representations are first-hand hearsay that come within s 62 of the Evidence Act as Mr Dickie had personal knowledge of the asserted facts. Sections 65 and 66A of the Evidence Act provide exceptions to the hearsay rule in respect of first-hand hearsay, as follows:

Submissions by the parties

1. [17]

   For the purposes of s 65, there is no dispute between the parties that Mr Dickie is not available to give evidence. If he is still alive, his whereabouts are unknown.

2. [18]

   As to the representation sought to be adduced from Ms Carter, the Crown relied upon s 65(2)(c), submitting that there were similarities between this evidence and that which was considered by Harrison J in R v Dawson [2022] NSWSC 814. In the same way that Lynette Dawson was socially and physically isolated and thus relied upon a close friend with whom to confide, which enhanced the reliability of what she told her neighbour, Mr Dickie clearly felt he could confide in Ms Carter, who he had known for 30 years, about his intentions in respect of his impending visitor.

3. [19]

   The nature of the representation was something that was likely to stick in Ms Carter’s mind and therefore it was made in circumstances that made it highly probable that the representation was reliable in terms of Ms Carter’s recollection.

4. [20]

   The accused noted that Ms Carter referred in her statement to Mr Dickie having been interested in a romantic relationship with her:

5. [21]

   The accused submitted that Mr Dickie’s past romantic interest in Ms Carter provided a motive for him “to be less than candid with Ms Carter about the nature of the romantic relationships he was having”, which garnered some support from Mr Dickie not directly responding to Ms Carter’s inquiry as to whether the woman was a sex worker.

6. [22]

   In relation to the statements attributed to Mr Dickie by Ms O’Reilly and Darren Dickie, the accused submitted that, assuming the “Russian girl” that Mr Dickie was referring to was Tatjana, the content of the emails concerning her suggested that she had planned to travel to Australia but without confirmation that she had in fact done so, which undermined the reliability of the representations to a point that the circumstances in which they were made could not make it “highly probable” that they were reliable.

7. [23]

   The accused did not want to be heard against the application by the Crown in respect of the anticipated evidence of Gary Weavers. The accused submitted that the representation to Ms Weavers concerning his vehicle being “the love of his life” and his “only woman” is not time-specific and therefore could not be demonstrated to be a contemporaneous representation for the purposes of s 66A. It was submitted that the representations made to her, considered together, were not inherently reliable for the purposes of s 65(2)(c), since Ms Weavers thought Mr Dickie had been interested in her romantically at an earlier time, and therefore he had a motive to not be honest in what he told her about other relationships.

Consideration

1. [24]

   Both parties accepted that the statements attributed to Mr Dickie by Ms Carter referred to the impending visit of the accused. Evidence of the asserted fact, that he intended to cut short the accused’s visit, was relevant to a fact in issue, namely, a motive for the accused to become angry with Mr Dickie to the point of seriously assaulting him.

2. [25]

   In Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 the Court (French CJ, Bell, Gageler, Keane and Gordon JJ) stated, at [71]:

3. [26]

   In considering the circumstances in which the challenged assertion was made, the Court should exclude evidence that tends only to prove the asserted fact and instead focus upon 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: R v Ambrosoli (2002) 55 NSWLR 603 at 616; [2002] NSWCCA 386 at [34].

4. [27]

   Aspects of the assertion corroborate the proposition that Mr Dickie was referring to the accused’s forthcoming visit. The accused arrived in Dubbo from New Zealand the following day, which was a Friday, and thus she would still be there at least for the weekend. Although the accused is Cambodian by birth, her first language is Vietnamese. According to the Crown Case Statement, Mr Dickie had engaged her services as a sex worker in 2011, and thus was known to him to be a sex worker.

5. [28]

   The accused’s submission that Mr Dickie had a motive to play down any romantic intentions he may have in fact had towards the accused because he may have continued to hope for a relationship with Ms Carter is not supported by any of the material on the voir dire. I note that there is no suggestion in Ms Carter’s statement that she wished for a relationship with Mr Dickie or that, as far as she knew, he continued to harbour romantic intentions towards her.

6. [29]

   In my view, the representations made to Ms Carter were made in circumstances that make it highly probable that they were reliable, being their long-standing friendship and his apparent ensuing high level of trust in her. That being so, it is unnecessary to consider whether it is also admissible pursuant to s 66A of the Evidence Act.

7. [30]

   If the anticipated evidence of Ms O’Reilly and that of Darren Dickie concerning a representation to the effect that a Russian female had recently stayed at Mr Dickie’s property and overstayed her welcome was a reference to the woman known as Tatjana, it is not supported by the email content in May 2016 with Tatjana. By the same token, however, it is not expressly contradicted by those email extracts. In Ambrosoli, Mason P (Hulme and Simpson JJ agreeing) considered the degree to which considerations of reliability apply to the content of the representation, as opposed to the fact that it was made, in applying s 65(2)(b) and (c) of the Evidence Act:

8. [31]

   I also note that the prior representation made to Ms O’Reilly and the evidence of Darren Dickie do not identify the Russian female by name, and so the extracts of emails concerning Tatjana do not conclusively bear upon the reliability of that evidence.

9. [32]

   The representations are similar in content and are made to close family members; one of his sons and one of his sisters. In my view, that circumstance has considerable weight in determining their reliability. I conclude that the representations as evidenced by Ms O’Reilly and Darren Dickie come within the terms of s 65(2)(c), namely, it is highly probable that the representations are reliable. I also note that in both cases, the representations to the witnesses were made within two months of the conversations and are of a nature that the listener would be likely to recall the terms of what was said.

10. [33]

    The representations attributed to Mr Dickie in Ms O’Reilly’s statement concerning “Sherry” and the Dubbo “druggie girl” are, in my view, admissible pursuant to s 65(2)(c) of the Evidence Act. It is not suggested that those claims were not made by Mr Dickie and they coincide with anticipated evidence in the Crown case that tends to corroborate their reliability in terms of them reflecting what Mr Dickie believed at the time to be the case.

11. [34]

    The prior representations in Mr Weavers’ statement as to Mr Dickie’s comments about his attitude to sexual and romantic relationships are inherently likely to be memorable and, as noted, their admissibility is not opposed. However, the part of paragraph (34) concerning the phone call by Mr Dickie to Ms Weavers is second hand hearsay and not admissible pursuant to s 65(2)(c).

12. [35]

    In my view, Ms Weaver’s contested evidence comes within s 65(2)(c) of the Evidence Act. Mr Dickie’s claim to Ms Weavers that his vehicle was his “only woman” is not reliable as to his disavowing of long term relationships, in my view, because it is an observation that may well be a deliberate overstatement intended only to reflect the considerable pride that took in the vehicle. Mr Dickie’s statements about women staying with him for one to two days and solely for sexual services was something that was candid in nature and potentially against his interests, which I take into account in determining that it is reliable.

13. [36]

    Accordingly, all of the contested passages are admissible as exceptions to the hearsay rule, except for part of paragraph 34 of Mr Weavers’ statement dated 19 June 2016 and paragraph 8 of Ms Weavers’ statement dated 19 June 2016.

The tendency evidence application

1. [37]

   On 22 August 2023, the Crown served on the defence a tendency notice in the following terms.

2. [38]

   The evidence was initially grouped into four categories of types of evidence. In the amended notice, it was regrouped according to which of the two aspects of the tendency the Crown contended that it supported, although there appears to be a degree of overlap, and modified as to content.

3. [39]

   This comprised statements allegedly made by Mr Dickie to three witnesses which are relied upon by the Crown as disavowals of long term relationships. The Crown identified another witness in the amended notice (Greg O’Leary) but withdrew its reliance on that person’s evidence for a tendency purpose in the course of oral submissions.

4. [40]

   The Crown relies upon paragraph (27) of Ms O’Reilly’s statement dated 23 June 2021, which is extracted at [9] above.

5. [41]

   The Crown relied on the prior representations by Mr Dickie in Mr Weavers’ statement dated 19 June 2016 that are extracted at [13] above.

6. [42]

   The Crown relied on the prior representations by Mr Dickie in Ms Weavers’ statement dated 19 June 2016 that are extracted at [14] above.

7. [43]

   The evidence in support of this proposition comprised accounts by two women of sexual services which they provided to Mr Dickie (“Tracey” and “Diana”), an account by a woman of an approach by Mr Dickie to have a short term sexual relationship with her (“Mandy”), documentary accounts of an encounter by Mr Dickie with a vulnerable woman in 2012 (concerning “Bronwyn”), a statement by a neighbour relating prior representations by Mr Dickie (Aaron O’Leary) and evidence adduced in cross-examination in the trial by two of Mr Dickie’s children (Darren and Damien Dickie).

8. [44]

   In a recorded interview with police on 5 July 2016, Tracey, who was aged 27 at the time of the interview, said that Mr Dickie would repeatedly approach her in Dubbo for fellatio in exchange for providing her cash to purchase drugs. He would pick her up in his vehicle, drive her to the location of a drug supplier and give her cash to purchase drugs in exchange for her then performing fellatio on him. She provided that service twice. On multiple other occasions, he paid her money to purchase drugs in the expectation that she would perform fellatio, but she did not.

9. [45]

   She first met Mr Dickie about nine months before her interview and last saw him approximately two months before the interview.

10. [46]

    In a recorded interview with police on 28 June 2016, Diana, who was aged 24 at the time of the interview, said that she met Mr Dickie in Dubbo about two or three years prior to the interview. He was a paying client in her employment as a sex worker. He would typically phone her and arrange a meeting for that purpose, driving her to his property. She initially said that the last time she provided a sexual service to Mr Dickie was a month before the interview, which she later amended to: “It would be a week, a couple, two weeks” beforehand.

11. [47]

    In all, she estimated that she had met with Mr Dickie for paid sexual services “a couple of hundred times”.

12. [48]

    Mandy was interviewed by police on 9 September 2016. She was aged 35 at the time that Mr Dickie was last seen. She told police that she met a man, who the Crown submits was Mr Dickie, in 2016. She was walking along the street where she lived and Mr Dickie, who was driving past, drove around the block, pulled up and started a conversation with her. He asked her if she was “a fun girl and all the rest of it … Do you drink at all … what is your discretion as in drugs”. He told her that “he wanted to take me to his place” which he said was “just a little bit out of town. About 25 minutes or so”. Mandy said that Mr Dickie “started describing that he had a bar … he didn’t want me for the night or so, he wanted the weekend”.

13. [49]

    Mandy said that she sat in his vehicle while she gave Mr Dickie her phone number and they made an appointment to meet. Subsequently she changed her mind. She did not keep the appointment and did not contact him or see him again, although he rang her number and left messages for her. She was uncertain as to when it was that she met him, nominating May and June 2016 as possible times.

14. [50]

    The Crown tendered two statements, Corrective Services case notes (the CS case notes) and a Corrective Services Incident Report concerning Bronwyn, who briefly stayed with Mr Dickie at his property upon her release from prison to parole in April 2012. At the time, Bronwyn was aged 31 and Mr Dickie was aged 67.

15. [51]

    The accused tendered a Computer Operated Policing System (COPS) report in relation to the same incident.

16. [52]

    A statement to police in 2017 by Jennifer Phillips, who was a Community Corrections Officer, was to the effect that Bronwyn was due to be released from custody on 21 April 2012. She asked to reside with Mr Dickie at his property. The officer contacted Mr Dickie and arranged to meet there. Ms Phillips stated:

17. [53]

    A CS case note concerned a phone conversation with Bronwyn on 24 April 2012:

18. [54]

    A statement by Senior Constable Simon Thorsteinsson is to the effect that he attended Mr Dickie’s property early on the morning of 24 April 2012 and put Bronwyn’s allegation to him. He said:

19. [55]

    The COPS entry recorded a history of the incident that was taken from Mr Dickie when police attended his property at 5:57am on 24 April 2012. Mr Dickie told police that they had met four or five months before the incident, when Bronwyn was hitchhiking with a friend and he gave them a lift. Shortly afterwards, he learned that Bronwyn was in Wellington Correctional Centre and started visiting her. She nominated him as a person she could be paroled to live with. He picked her up on 20 April 2012 and arranged accommodation for her at a hotel in Dubbo, while he was working in Singleton. He provided her with a phone and some cash. On 23 April 2022, he drove her to his property.

20. [56]

    According to Mr Dickie, he drove her back to Dubbo three times the same afternoon to enable her to purchase ice (methamphetamine), which she administered. They finally returned at 11pm and then had sexual intercourse. She then requested to be returned to Dubbo. According to the COPS report:

21. [57]

    The COPS report recorded police actions with [Bronwyn]:

22. [58]

    The Crown sought to rely upon Darren Dickie’s evidence concerning the “Russian lady”, which is extracted at [12] above, and his evidence as to what his father had told him about his short term relationships between 2012 and 2016. This included his father telling him that his means of meeting women included the internet, and telling him: “Occasionally they were locals and occasionally they were from overseas”.

23. [59]

    Damien Dickie gave evidence to the effect that he was aware that when his father lived at his property he had “very short” relationships with women.

24. [60]

    In a statement to police dated 19 June 2016, Mr O’Leary stated he had known Mr Dickie for fifteen years, six years as a neighbour. He stated:

25. [61]

    This evidence comprised 106 pages of further email extracts downloaded from Mr Dickie’s iPad, spanning the period 8 March 2008 to 8 June 2016, which includes the emails concerning Tatjana and Ekaterina, referred to at [10] and [11] above.

26. [62]

    The balance of emails, in summary, contain exhortations by Mr Dickie to women who were located overseas, interstate or elsewhere in New South Wales, to come and stay with him, often in sexualised terms that ostensibly suggested a long-term commitment, which the Crown submits were consistently false. The emails include correspondence between Mr Dickie and the accused, between 2 June and 8 June 2016.

27. [63]

    The accused tendered on the voir dire a bundle of 86 further pages of excerpts of emails that were downloaded from Mr Dickie’s iPad, from the period 12 May 2009 to 10 March 2016. Some emails are between Mr Dickie and “Sherry”. In another sequence concerning “elena russia”, in emails dated 20 and 24 December 2012, he referred to having paid US$1,850 and US$700 respectively to her to travel to Australia to stay with him. The accused separately tendered an email from Mr Dickie to “elena Russia” dated 5 January 2013, the content of which suggested that she still had not arrived in Australia.

Relevant legislative provisions

1. [64]

   Section 97(1) of the Evidence Act provides as follows:

2. [65]

   The term “probative value” of evidence is defined in the Dictionary of the Evidence Act as follows:

3. [66]

   Sections 101(1) and (2) of the Evidence Act provide:

4. [67]

   I note that s 101(2) was amended on 10 June 2020 by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) so that the word “substantially”, which previously qualified the prejudicial effect, was deleted.

5. [68]

   Sections 99 and 100 of the Evidence Act relevantly provide as follows:

6. [69]

   As to its failure to provide reasonable notice of its intention to rely upon tendency evidence, the Crown submitted that there is no prejudice, since the Crown had given notice of its intention to adduce the evidence, albeit not as tendency evidence pursuant to s 99: Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579 per Hamilton J at [19]. In any event, it is apparent that the accused, as part of her case, will be relying on aspects of the purported tendency evidence in endeavouring to argue that the circumstantial case against the accused is open to other rational hypotheses, consistent with innocence.

7. [70]

   The Crown submitted that the evidence has significant probative value because it makes it more likely, to a significant extent, that Mr Dickie had tricked the accused into coming to Australia by pretending to commit to a long term relationship, whereas he in fact intended to terminate the relationship within a matter of days. When the accused realised the ruse, she had a motive to violently attack Mr Dickie, thus committing the offence as charged.

8. [71]

   In relation to Ms O’Reilly’s evidence concerning the “Russian girl” and Darren Dickie’s evidence concerning the “Russian lady”, the Crown submitted that the fact that Mr Dickie made a representation in very similar terms in the same time frame is a matter that increases the likelihood that the representation was reliable.

9. [72]

   In relation to the emails, in the amended notice the Crown identified eight recipients in the emails of promises of committed relationships other than the accused, stating:

10. [73]

    The Crown submitted that s 101(2) had no application, since the tendency that the Crown sought to establish was not about the accused, but rather, Mr Dickie.

11. [74]

    The accused has not taken issue with the absence of reasonable notice of the Crown’s intention to adduce tendency evidence, since it was appraised of the evidence in advance, and does not dispute the Crown’s submission that s 101(2) does not apply to the application.

12. [75]

    In relation to the evidence concerning the first alleged tendency, the accused submitted that the relevant evidence of Ms O’Reilly and Darren Dickie concerning the Russian female was unreliable, in light of the extracts of emails between Mr Dickie and Tatjana and the absence of any independent evidence that she or any other Russian female had recently stayed with Mr Dickie. During the course of submissions on the voir dire, before Darren Dickie gave his evidence about the “Russian lady”, the Crown submitted orally in relation to Annette O’Reilly’s statement as to what Mr Dickie told her about the “Russian girl”:

13. [76]

    The accused submitted that this passage constituted a concession by the Crown at that time that Mr Dickie must have been referring to Tatjana when he made the representation to Ms O’Reilly, and that she did not in fact travel to Australia, so that the representation could not have “significant probative value”. A change in that position in view of the later evidence of Darren Dickie would be unfair to the accused.

14. [77]

    The Crown denied that, by the last sentence in the extracted passage from its submissions on the voir dire, it accepted that a Russian female had not travelled to Australia to stay with Mr Dickie.

15. [78]

    Ms Weavers’ belief that Mr Dickie had a sexual or romantic interest in her and her observation that he would usually attend her property when her husband was not present, was a relevant circumstance as to the reliability of Mr Dickie’s representation, since he had a motive to convey an impression, true or not, that he had no interest in a relationship with other women and thus was available to her as a potential sexual or romantic partner. In that regard, the accused relied upon observations by N Adams J in R v Singh (No 4) [2021] NSWSC 75 at [22]-[50] to the effect that the relationship between the maker of the representation and the listener may affect its reliability.

16. [79]

    The accused conceded that the evidence of Diana and, to a lesser extent Tracey, tends to establish that Mr Dickie regularly had “short-term sexual partners attend his home for a number of days”, but submitted that there is no evidence that such encounters were facilitated by him “promising long-term relationships with them”. On the contrary, both Tracey and Diana make it clear that they only ever expected the encounters to be brief and for the purposes of providing sexual services in exchange for money and/or drugs.

17. [80]

    However, the episode with Bronwyn suggests Mr Dickie sought a longer-term relationship with her. Having met her by chance when she was hitch-hiking, Mr Dickie visited her in gaol and offered his residence to her on “a permanent basis”, according to the CS case note entry on 19 April 2012. Bronwyn, not Mr Dickie, terminated her live-in status. The accused submitted that the COPS entry of the account taken from Mr Dickie warranted significant weight because it was provided to police in circumstances where it was likely to be reliable.

18. [81]

    The encounter that Mandy described with Mr Dickie suggests any “relationship” she might have had with him would have been the same as those he had with Diana and Tracey; that is, not a short term encounter.

19. [82]

    The accused submitted that the emails were consistent with Mr Dickie seeking a long-term relationship. They reflect multiple, persistent and genuine attempts to persuade various individuals to come and live with him on his property. On at least one occasion there is a reference to him transferring a substantial sum of money overseas and on another occasion he wrote, with apparent sincerity, to a third party seeking assistance with arrangements to bring out a woman from Cambodia who he said he intended to marry.

20. [83]

    As to the relevant principles, the accused relied upon a summary of principles applicable to the application of s 97 drawn from recent High Court cases by Macfarlan JA (Walton and Wilson JJ agreeing) in Greenaway v R [2021] NSWCCA 253 at [27]-[32].

Consideration

1. [84]

   In Taylor v R [2020] NSWCCA 355, Bell P (as his Honour then was) advanced certain propositions concerning the relationship between ss 97 and 101(2) of the Evidence Act. The first five of those propositions are as follows:

2. [85]

   In accordance with the starting point identified by Bell P at [122(i)] above, I note the following with respect to whether the proffered evidence is in fact evidence of the asserted tendency.

3. [86]

   The statements concerning the “Russian girl” made to Annette O’Reilly and the “Russian lady” to Darren Dickie are not, considered in isolation, a disavowal of the concept of long term relationships, but rather a declaration that he did not want the particular woman to stay longer that ten days. Considered in isolation, the statements do not support the asserted tendency. However, in the context of other evidence of assertions by Mr Dickie that he did not want long term relationships, it obtains the character of being both illustrative and confirmatory of that tendency.

4. [87]

   In my view, a reading of the relevant part of the transcript of the voir dire submissions does not establish that the Crown changed its position as to whether in fact a Russian female stayed with him in the months prior to his disappearance. My understanding is that the Crown’s position remains that there is no evidence that a Russian female travelled to Australia to stay with him in that period, not that in fact it did not happen; police were unable to determine the identity of “Tatjana” in order to make further inquiries: transcript 17/8/23 at p153.21-34. I do not think that there is any unfairness occasioned to the defence by permitting the Crown to rely upon Mr Dickie’s representation to Darren Dickie. I understand that the evidence was different to what was in his statement, so that the defence was taken by surprise by Darren Dickie’s evidence, in that respect. It would be appropriate for Darren Dickie to be recalled for further cross-examination, should the accused wish to pursue that course.

5. [88]

   Since Gary Weavers’ reference to Mr Dickie’s phone call with Sandra Weavers concerning Oxycontin and Ms Weavers’ reference to Mr Dickie’s characterisation of his vehicle do not come within exceptions to the hearsay rule, that evidence is inadmissible for all purposes. I note that there is no challenge to the admissibility of the relevant part of Ms Weavers’ statement concerning the same incident.

6. [89]

   Ms Weavers’ reference to a prior representation by Mr Dickie that he would not engage in another long-term relationship is clearly supportive of the asserted tendency by Mr Dickie to disavow long term, live-in relationships. In that light, Mr Dickie’s representations that he brought women, including some he knew to be drug users, to his property for one to two days for his sexual gratification bespoke a pattern of behaviour that is consistent with, and provides support for, that assertion.

7. [90]

   In my view, the Crown has tendered on the voir dire ample evidence in support of the first limb of the asserted tendency, namely, that Mr Dickie had a tendency to engage in short term sexual encounters, in the form of the records of interview of Tracey, Diana and Mandy, the evidence of Darren Dickie, his statements to Gary Weavers and Sandra Weavers on the topic of short-term encounters and the account recorded by police of Mr Dickie’s explanation of his interaction with Bronwyn.

8. [91]

   The accused’s submission that Mr Dickie genuinely offered Bronwyn a permanent place of residence should be gauged against what he told Corrective Services staff. There was no suggestion in the material that he told them that his offer of residence was on the basis of a romantic relationship. In view of subsequent events, it is apparent that his offer to care for her and keep her away from prohibited drugs was a ruse, since once she was at his residence, by his own admission to police he immediately facilitated her accessing methamphetamine and had sexual intercourse with her in circumstances that strongly suggest his motive did not extend beyond having her at his property for short-term sexual purposes.

9. [92]

   In relation to the false promising of long term relationships, the evidence relied upon by the Crown is, firstly, the body of extracts of emails to multiple women over many years purporting to offer long-term relationships, and secondly, the falsity of those offers being established by the sheer multiplicity of his entreaties to women via the internet, sometimes to different women at around the same time, and his candid repeated admission to Sandra Weavers over the time that she knew him that he had no intention of committing to a long term relationship. I find that the evidence does support that tendency.

10. [93]

    The next question for consideration is whether the evidence is of significant probative value, which is an exercise to be undertaken on the assumption that it will be accepted by the Court (in this case, being a trial by judge alone, rather than by a jury) and taken at its highest; Taylor at [122(ii)-(v)]; Greenaway at [27]-[28]. The guidance provided in those authorities as to the determination of “significant probative value” is in the context of evidence concerning an accused, rather than an alleged victim, although the principles have considerable application in an exercise not involving a defendant.

11. [94]

    The evidence of Annette O’Reilly and Darren Dickie concerning the “Russian girly” and “Russian lady” meets that standard. It evidences an action that is consistent with the alleged pattern of behaviour of not having partners live with him for an extended period. In my view, the fact that the representations were to one of his sisters and to one of his sons enhances the likelihood of honesty and thus the reliability of the assertions, even though there is no evidence that independently corroborates the representation.

12. [95]

    The representation to Sandra Weavers by Mr Dickie in paragraph 12 of her statement as to his attitude to long term relationships has significant probative value because it tends to disclose his real intentions when he professed to others a desire for long term relationships in the process of inviting them to travel to Elong Elong and stay with him. That is reinforced by the evidence of representations in which he stated a preference for short term liaisons and evidence of him engaging in such liaisons.

13. [96]

    I am not satisfied that the evidence of Damien Dickie, and the passage from the statement of Aaron O’Leary concerning what he was told by Mr Dickie, meet the high standard of having significant probative value. Both passages are brief, with scant detail or context.

Determination

1. [97]

   I am satisfied that, with certain exceptions, the evidence that the Crown seeks to rely upon in order to seek to establish the stated tendency as part of its circumstantial case, is admissible as relevant to the three stated propositions that are extracted at [37] above.

2. [98]

   I note that there is no prejudice to the accused arising from the absence of reasonable notice of the Crown’s application to adduce tendency evidence, and will direct that the notice requirement in s 97(1)(a) be dispensed with pursuant to s 100(1) of the Evidence Act. I note that s 101 of the Evidence Act is not relevant to the Crown’s application.

3. [99]

   For the sake of completeness, the accused has anticipated that it will seek to rely upon at least some of that same body of evidence for a different purpose, namely, to establish evidence of motive by others to do harm to Mr Dickie. This ruling does not affect the admissibility of the evidence for that purpose.

Orders

1. [100]

   I make the following orders:

   1. (1)

      In respect of the application by the Crown to admit certain hearsay evidence:

   2. (2)

      In respect of the amended tendency notice dated 28 August 2023: