Evidence and Proof
On Sunday 21 August 2020 a car being driven by Mr A left the road at the summit of Mt Ward. It crashed through a wooden barrier and went down a steep gradient ending up at the bottom in a bushy area. Mr A’s two daughters were in the back seat of the car. One of the two daughters, B, was thrown from the car and as a result suffered serious head injuries from which she died. Mr A and his other daughter, S, were injured. Mr A was charged with murder and attempted murder. The Crown alleges that Mr A deliberately drove off the road in an attempt to kill the girls and, presumably, himself. The Crown asserts that the conduct resulted from a build-up of external pressures. These alleged pressures include:
a) Mr A’s two daughters are deaf. It was hoped that both of them would be able to have an operation which would improve matters but the parents had recently been told that one daughter was not suitable for such an operation;
b) On-going immigration matters. Mr A and his wife emigrated from South Africa in July 2003; and
c) Difficulties in the relationship between Mr A and his wife.
Mr A was committed to trial in the Supreme Court of New South Wales and the trial commenced on 7 February 2022. There are admissibility concerns over:
• Evidence from Mrs A’s (the wife’s) parents regarding an overheard telephone conversation between Mrs A (the wife) and Mr A shortly before the accident;
• Evidence from Constable Wood regarding a telephone with Mr A;
• Medical evidence concerning the deafness of the two daughters and Mr A’s reaction to that; and
• a photograph of the car at the bottom of Mt Ward.
In this case you are asked to advise on the admissibility of the above. Further investigation reveals:
1. Mrs A refuses to give evidence. The Crown case is that sometime shortly before the crash Mr A rang his wife from the car and spoke to her. The evidence suggests that, through the course of the one phone call, Mr A spoke first to his wife and then to Mrs A’s (the wife’s) mother, PY. He then spoke to a police officer, Constable Wood, who had by that time arrived at the house. He then finally spoke again to Mrs A (the wife) almost as the crash was occurring.
2. The Crown wishes to call Mrs A’s (the wife’s) parents, PY (Mrs A’s mother) and CY (Mrs A’s father), who were present at the time of the call and whose testimony it is proposed would include:
(a) Saying what they heard their daughter say (i.e. her part of the conversation); and
(b) Saying what their daughter told them about what Mr A said to her (i.e. his part of the conversation).
3. The police officer, Constable Wood, who spoke to Mr A, and whose testimony it is proposed would include that during the conversation:
(i) Mr A stated: ‘I’ve given her eleven years of my life”;
(ii) In response to Constable Wood enquiring about the children in the car, the accused responded: ‘… they’re going with me’;
(iii) Mr A stated: ‘I’m going to take care of things;
(iv) Mr A stated: ‘I’ve already said goodbye’;
(v) Mr A stated ‘Put me onto my wife, I’m running out of time … I’ve only got about ten seconds left.’
4. It is proposed that at trial it will be made known that there was a call, that Mr A spoke to Mrs A (the wife), and that he also spoke to the police officer and allegedly said the things to which the officer will testify.
The trial issue is whether the crash was an accident or deliberate. The evidence of the conversation goes to establishing Mr A’s state of mind at the time. In his statement Mr A accepts the fact of the telephone call. He cannot recall what he said to the police officer. He accepts that his wife told him ‘Bring my children home, don’t hurt them’ (one of the overheard statements of which PY (the wife’s mother) wishes to testify).
With reference to legal authority advise whether:
• It is permissible to call the evidence of PY (the wife’s mother) and CY (the wife’s father) on what Mrs A (the wife) said and what she said her husband said;
• It is permissible to call the evidence of Constable Wood;
• The Medical evidence concerning the deafness of the two daughters and Mr A’s reaction to that is admissible; and
• The photograph of the car at the bottom of Mt Ward is admissible.
If so, why and how it is admissible? If the evidence is deemed inadmissible, what other arguments for its admissibility can the Crown raise?
