R v Papanicolaou (No 3)

1. [1]

   The prosecution is seeking to adduce evidence by way of an audio-visual recording of an interview with the deceased captured on 8 January 2019, six days after the alleged attack on 2 January 2019. The deceased eventually died on 19 February 2019. The accused, Hanny Papanicolaou, seeks an advance ruling under s 192A(a) of the Evidence Act 1995 (NSW) that the Court refuse to admit the visual element of the recording under s 137 of the Evidence Act, on the basis that its probative value is outweighed by a danger of unfair prejudice. The accused does not, however, object to the admission of the audio element of the interview.

2. [2]

   For the reasons which follow, I am of the view that the visual element of the audio-visual recording should be admitted as well as the audio element.

Background

1. [3]

   The accused has been charged on indictment with one count that on 19 February 2019, in Sydney in the State of New South Wales, she did murder Marjorie Jane Welsh. The accused was arraigned in the Supreme Court on 7 August 2020 and pleaded not guilty to murder but guilty to manslaughter on the basis of substantial impairment under s 23A of the Crimes Act 1900 (NSW). This plea was not accepted by the Crown in satisfaction of the indictment.

2. [4]

   The empanelling of the jury for the trial of the accused has been listed for 24 January 2022.

Prosecution case

1. [5]

   The substance of the most relevant aspects of the prosecution case is set out in the paragraphs which follow.

2. [6]

   The accused was born in Indonesia in 1983 and moved to Australia in about 2007, after she married her husband, an Australian citizen. In late 2018 and early 2019, the accused worked for a number of clients, including the deceased’s daughter and the deceased, as a self-employed domestic cleaner. The accused was a regular gambler, most often playing poker machines at an RSL club. She regularly requested that money be transferred to her by her husband and by other persons to fund her gambling.

3. [7]

   The accused cleaned the deceased’s house generally once per week, as arranged by the deceased’s daughter, usually on a Friday morning. When the accused came to clean the deceased’s house she would park her car in the driveway, go to the front door and wait to be let in by the deceased. The accused and the deceased had a close relationship and the deceased disclosed to the accused that she (the deceased) had sold her previous property for $8 million, which shocked the accused.

4. [8]

   On Wednesday, 2 January 2019, shortly after 9:00 am, the accused went to the RSL club and played the poker machines for about 50 minutes, losing $430 during that period. After certain withdrawals from her bank account, the accused was left with $11 in the account. The accused left the club and drove to the park behind the deceased’s house.

5. [9]

   The accused gained access to the deceased’s backyard over the fence at the corner of the property. The deceased had been in her yard but, by the time she entered her house through the backdoor, the accused was inside and this is where the deceased first saw the accused that day.

6. [10]

   The accused immediately began to attack the deceased with the deceased’s walking sticks, beating her and breaking two of the sticks in so doing. The accused also hit the deceased in the head, face, chest and arms with decorative, ceramic plates belonging to the deceased. At some stage, the accused removed a kitchen knife from the cutlery drawer and stabbed the deceased in the chest and abdomen about six times.

7. [11]

   The deceased was badly injured but crawled towards the backdoor where she activated an emergency pendant around her neck at 10:39 am. The accused switched off the emergency call unit and removed the cordless telephone with which it was connected. She took the cordless telephone and the knife and left. The deceased reached the backdoor, called for help and reactivated the pendant. The accused jumped over the back fence and ran back to her car. The deceased identified her attacker as “the cleaner” to the police and ambulance officers who attended soon after.

8. [12]

   The accused drove home, discarding the cordless telephone and the knife in a bin in Canterbury and the shirt she was wearing near her home. She spoke to her husband but was upset and left soon after. The accused was located and arrested. She informed police where she had discarded the knife and clothing, which were located along with the telephone.

9. [13]

   The accused was interviewed by police and she gave a relatively detailed account of what she said occurred, including that the deceased accused her of stealing $50 and that it was the deceased who attacked her with a walking stick and had the knife in her hand. It was also said that the ceramic plates had fallen off the table during the struggle.

10. [14]

    The deceased died on 19 February 2019 due to complications of blunt force head injury and stab wounds to the chest and abdomen.

Defence response

1. [15]

   The defence response, provided in accordance with s 143 of the Criminal Procedure Act 1986 (NSW), expressly stated that the accused intended to plead not guilty to murder but guilty to manslaughter on the basis of substantial impairment pursuant to s 23A of the Crimes Act. A notice under s 151 of the Criminal Procedure Act indicated that the accused intended to rely on the evidence of Dr Kerri Eagle, forensic psychiatrist, in two reports dated 2 April 2020 and 30 June 2020. In her earlier report, Dr Eagle relevantly opined:

2. [16]

   Dr Eagle in her earlier report described the accused’s underlying condition as a “major depressive disorder, major depressive episode moderate to severe”.

The audio-visual recording

1. [17]

   As noted above, the deceased’s interview with police on 8 January 2019 was recorded audio-visually. It was not in dispute that the notice requirement under s 67 of the Evidence Act had been complied with or that the audio-visual recording was admissible under s 65. The parties also reached agreement that certain portions of the interview should be edited out from the version to be tendered. The only issue remaining was whether the visual element of the recording should be excluded under s 137 of the Evidence Act.

Section 137 and relevant principles

1. [18]

   Section 137 of the Evidence Act provides:

2. [19]

   In the Dictionary to the Evidence Act, “probative value” is defined as meaning:

3. [20]

   In considering whether the probative value of the evidence outweighs the danger of unfair prejudice to the accused, the probative value of the evidence is to be assessed at its highest, unless the evidence is so lacking in credibility or reliability that it would not be open to a jury acting rationally and properly directed to accept it: The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [95] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [47] (French CJ, Kiefel, Bell and Keane JJ). It was not suggested in the present case that the evidence was so lacking in credibility and reliability that it could not be accepted.

4. [21]

   Assessing the probative value of the evidence in the audio-visual recording of the interview of 8 January 2019 involves taking it at its highest in the effect it could achieve on the assessment of the probability of the existence of the relevant facts in issue: IMM v The Queen at [47].

5. [22]

   The danger of unfair prejudice reflects the concern to ensure that evidence which might induce a jury to reason impermissibly to a conclusion of guilt is excluded unless the evidence is conceived to be of such probative value that, despite its prejudicial effect, it is just to admit it: IMM v The Queen at [171] (Nettle and Gordon JJ).

Submissions

1. [23]

   The Crown submitted that the probative value of the visual aspect of the recording outweighed any danger of unfair prejudice, contending indeed that there was no unfair prejudice arising from playing both the audio and visual aspects of the recording.

2. [24]

   The factual matters in issue were said by the Crown to include:

   1. (1)

      in light of DNA evidence relating to a bloodstain inside a wardrobe in the deceased’s bedroom, whether either of the accused and the deceased went into the bedroom after the alleged attack; and

   2. (2)

      whether the accused brought cleaning items with her on the day in question.

3. [25]

   In addition, the Crown noted that the deceased communicated non-verbally on numerous occasions during the interview and that these non-verbal indications were important to the assessment of the credibility of the deceased. In this regard a table setting out various instances of non-verbal communication during the interview was provided.

4. [26]

   Finally, it was submitted that there was also “residual probative value” in the appearance of the deceased with respect to the assessment by the jury as to whether the alleged attack was undertaken with an intention to kill, or to inflict grievous bodily harm on, the deceased.

5. [27]

   The accused submitted that the visual aspects of the recording of the interview show the deceased in hospital clothing, with her face bruised and presenting with evidence of significant medical interventions such as medical dressings and what appear to be intravenous devices.

6. [28]

   The accused contended that, when regard was had to the contested issues at trial, the probative value of the visual element of the recording was minor. In relation to the deceased’s credibility it was submitted that this did not significantly impact on the central issues arising from the partial defence of substantial impairment. As to factual issues such as whether the accused had two bags with her when she attended the deceased’s house, it was submitted that no aspect of the visual element of the recording was indicative of whether the deceased’s account was correct about those factual issues; instead, it was submitted, those factual issues depend on the evidence of another witness.

7. [29]

   Next, it was submitted that the non-verbal communication identified by the Crown was accompanied by unambiguous oral representations and that much of the non-verbal communication attached to information that was not contentious. Finally, in this regard, it was submitted that the physical state of the deceased as viewed six days after the alleged assault did not assist in assessing the accused’s state of mind at the time of the alleged assault. In particular, it was said that the visual element did not reveal any significant physical aspects of the assault — namely the stab wounds, internal injuries and complications arising during treatment — that would be relevant to such an enquiry. The bruising that could be seen on 8 January 2019 was, it was said, simply not probative as to the state of mind of the accused on 2 January 2019.

8. [30]

   As to the danger of unfair prejudice, the accused contended that this could arise as a result of the admission of the visual element of the recording in a number of ways. First, it was submitted that there was no evidence that any aspect of the deceased’s presentation on 8 January 2019 was exclusively referrable to the alleged assault itself and had not been affected by steps taken in her treatment and recovery and that therefore there was a danger that her appearance on 8 January 2019 would mislead the jury.

9. [31]

   Secondly, it was the accused’s contention that the visual element would evoke sympathy and that to play a recording that visually depicted the deceased’s plight in a hospital ward over an extended period of time was likely to intensify the jury’s feelings of antipathy towards the accused which would distract the jury from its proper task of evaluating the accused’s partial defence.

Consideration

1. [32]

   For the purposes of determining whether the visual aspect of the recording of the interview of 8 January 2019 should be rejected under s 137 of the Evidence Act on the basis that the probative value of that evidence is outweighed by the danger of unfair prejudice to the accused, I have viewed the audio-visual recording and had particular regard to the deceased’s appearance and her verbal and non-verbal communication.

2. [33]

   In considering the probative value of the visual aspect of the recording, it is also necessary to have regard to the facts in issue, since the probative value of the evidence depends on the extent to which the evidence could rationally affect the assessment of the probability of the existence of the relevant facts in issue.

3. [34]

   The accused does not dispute that she killed the deceased. As I understand the position, two of the most significant issues in the trial will be whether the accused has proved on the balance of probabilities that:

   1. (1)

      at the time she inflicted the fatal wounds on the deceased, the accused was substantially impaired within s 23A(1)(a) of the Crimes Act; and

   2. (2)

      any such impairment was so substantial as to warrant liability for murder being reduced to manslaughter under s 23A(1)(b).

4. [35]

   Those are not, however, the only or necessarily the principal facts in issue for the purposes of consideration of the admissibility of the visual aspect of the recording of the interview of 8 January 2019. It is also in issue whether at the time she attacked and stabbed the deceased, the accused intended to kill her or to cause her grievous bodily harm. In addition, it should be noted that some of the facts as to what occurred immediately before, during and immediately after the attack on the deceased on 2 January 2019 are not agreed.

5. [36]

   It appears to me that the visual elements of the deceased’s evidence in the 8 January 2019 interview concerning what occurred on 2 January 2019, taken at its highest could rationally affect, to a significant extent, the assessment of the probability of the existence of facts relating to the nature and extent of the accused’s impairment, if any, at the relevant time, and the accused’s intention at the time in question. It could similarly affect the assessment of the probability of the existence of facts concerning what precisely occurred immediately prior to, during and immediately after the attack, about which there is no agreement.

6. [37]

   Even where the deceased’s evidence is uncontradicted by other evidence, the jury will have to consider whether it accepts the deceased as a credible and reliable witness in relation to this evidence. Moreover, some of the deceased’s evidence in the interview on 8 January 2019 was not consistent with other prosecution evidence. Thus, it will also be necessary for the jury to form an assessment of the reliability and credibility of the deceased’s evidence generally and in relation to particular matters when considering all of the evidence as a whole and when determining what parts of the deceased’s evidence, if any, the jury accepts and what weight to give it.

7. [38]

   Furthermore, the probative value of the visual aspect of the evidence in relation to the facts in issue is different from and adds to the probative value of the audio element. I accept that non‑verbal communication, especially by facial expressions, gestures and other body language, is generally a significant part of human communication and is often an important factor in forming a properly informed assessment of what is being conveyed and the reliability and credibility of the person giving evidence. Non-verbal communication is captured and assessed principally by seeing the witness give their evidence, although some non-verbal communication is also conveyed by tone, volume, pitch and speed of speech, which are captured in the audio element of the recording. The gestures and other forms of non-verbal communication listed in the table accompanying the Crown’s written submissions include a substantial number of cases where comprehension of what is being conveyed and assessment of its reliability and credibility are likely to be significantly enhanced by seeing, as well as hearing, the deceased in the interview. For example, seeing the deceased’s reaction to being shown the picture of the knife, her demonstration of where she was hit on the face with the cane and her shaking her head without giving a verbal answer to some of the questions are but a few instance of where seeing the visual element of the recording of the interview is necessary or particularly helpful in order to understand or assess what is being conveyed.

8. [39]

   In these circumstances and given the importance of visual non-verbal communication in assessing evidence, in my view the visual element of the recording of the 8 January 2019 interview has significant probative value in relation to the relevant facts in issue in the present case.

9. [40]

   The question then becomes whether that probative value is outweighed by the danger of unfair prejudice to the accused.

10. [41]

    Having viewed the audio-visual recording of the interview, I did not perceive that there was any substantial basis for concluding that seeing the visual element of the recording would be likely to cause the jury to have intensified feelings of antipathy towards the accused that would distract them from their proper tasks of finding the facts, evaluating the accused’s partial defence and reaching a verdict. Although obviously bruised and bandaged, in hospital and receiving treatment, the deceased was sitting up, generally articulate and not in any apparent significant discomfort. The visual depiction of the deceased was not gruesome or particularly shocking. It was not such as to lead me to conclude that there likely would be an emotional response on the part of the jury that might affect their judgment and that could not be overcome by appropriate directions.

11. [42]

    The deceased’s presentation on 8 January 2019 did not depict the results of the stab wounds to the chest and abdomen. Nonetheless, it did not appear to me that there was any significant danger that her appearance on 8 January 2019 would likely mislead the jury in any way that would cause them to reason impermissibly as to whether the accused was guilty.

12. [43]

    In these circumstances, I was not satisfied that the probative value of the visual aspect of the recording of the 8 January 2019 interview would be outweighed by the danger of unfair prejudice. Indeed, I had difficulty perceiving that there was any significant danger of unfair prejudice arising from seeing the visual aspect of the recording together with the audio aspect in this case.

13. [44]

    On these bases, the visual aspect of the audio-visual recording should not be excluded under s 137 of the Evidence Act.

Conclusion

1. [45]

   For these reasons, I am of the view that the audio-visual recording of the 8 January 2019 interview with the deceased is admissible, subject to the editing which has already been agreed between the parties.