Citation: R v Merrick (No 3) [2016] NSWSC 181
Court: Supreme Court of New South Wales
Date: 3 March 2016
Judge: Wilson J
Background
The accused faced a criminal trial in which the deceased was the alleged victim. During the course of the trial, and immediately before a witness (Ms Cole) was called to give evidence-in-chief, defence counsel objected to a portion of Ms Cole's witness statement.
The disputed portion contained a message the accused had allegedly sent to Ms Cole, in which he referred to the deceased in crude and derogatory terms. A separate sentence in the same paragraph summarised what appeared to be multiple messages in which the accused suggested the deceased was likely to be unfaithful to him.
The Court had previously conducted two full days of argument on the admissibility of context and relationship evidence, and had delivered a judgment on that question. This ruling concerned whether the specific contested material fell within the scope of what had already been admitted.
Legal Issues
- Whether a specific derogatory message sent by the accused about the deceased was admissible as relationship or context evidence.
- Whether a witness's general summary of multiple messages (suggesting the accused believed the deceased would cheat on him) was admissible on the same basis.
Decision
Wilson J admitted the specific derogatory message without detailed re-examination of the underlying reasoning, noting that an earlier judgment had already resolved the admissibility framework for relationship and context evidence. The judge observed that other text messages already in evidence contained similarly derogatory language directed at the deceased, and drew no meaningful distinction between those messages and the one now in dispute. Accordingly, the specific message was admitted on the same basis as the previously admitted relationship evidence.
The court declined to admit the final sentence of the disputed paragraph, which amounted to a witness's general summary of multiple messages about the deceased's alleged faithfulness. The judge noted that such a summary may lack accuracy and does not carry the same relevance and probative value as the specific messages themselves.
The Crown was left open to tender the underlying specific messages (subject to their content), but the witness's paraphrase of them was not regarded as a satisfactory substitute for that primary material.
Orders Made
No formal orders were recorded in this decision. The ruling was made ex tempore (orally, on the spot) during the course of the trial, admitting the specific message and excluding the summary sentence.
Key Takeaways
- The Supreme Court confirmed that a witness's general summary of multiple messages does not carry the same relevance and probative value as the specific underlying messages themselves, and may be excluded on that basis.
- Where a court has already delivered a substantive judgment on the admissibility of a category of evidence (such as relationship or context evidence), subsequent rulings on individual items within that category may be resolved by reference to the earlier framework without re-litigating the principles.
- Consistency matters in evidentiary rulings: where materially similar evidence has already been admitted, a court will look for a meaningful distinction before excluding a further item of the same character.
- The specific derogatory message was treated as relationship evidence, admissible to provide context for the accused's attitude toward the deceased.
- Admissibility of a witness summary of communications may be distinguished from admissibility of the communications themselves, with the originals being the preferable form of that evidence.
Legislation and Cases Referenced
Legislation: None cited in the judgment text or metadata.
Cases: None cited in the judgment text or metadata. Wilson J referred to a prior judgment delivered in the same proceedings (not separately cited in the provided text).