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Supreme Court 31 July 2017

R v Walker (No 2)

[2017] NSWSC 1008

HomicideDomestic & family violence
EVIDENCE TENDENCY EVIDENCE MURDER DEATH OF DOMESTIC PARTNER OF ACCUSED CERTAIN TENDENCY EVIDENCE ADMISSIBLE

Citation: R v Walker (No 2) [2017] NSWSC 1008
Court: Supreme Court of New South Wales
Date: 31 July 2017
Judge(s): Schmidt J

Background

The accused stood trial for the murder of his domestic partner, Ms Locke, who died on 27 April 2015. The two had been in an intimate relationship for approximately 23 years. The Crown alleged that the injuries causing Ms Locke's death resulted from the accused's deliberate unlawful acts, while the accused had given a number of inconsistent accounts to police about how she came to be injured.

The Crown served a tendency notice under s 97 of the Evidence Act 1995 (NSW), seeking to prove the accused had a tendency to act violently toward Ms Locke in their home. The proposed tendency evidence included kicking, punching, pushing, throwing objects, and pushing the deceased down stairs. Most of that evidence was not objected to; the dispute concerned the evidence of two specific witnesses, Elisha Locke and Ms Large.

This decision addressed the admissibility of the disputed testimony from those two witnesses, both as tendency evidence and, in Ms Large's case, as relationship evidence.

  • Whether the evidence of Elisha Locke had significant probative value under s 97(1)(b) of the Evidence Act 1995 (NSW), and whether its probative value substantially outweighed any prejudicial effect under s 101
  • Whether the evidence of Ms Large had significant probative value as tendency evidence under s 97 and s 101
  • Whether Ms Large's evidence was admissible as relationship evidence, and if so, whether it should be excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice

Decision

Elisha Locke's tendency evidence: Elisha Locke had lived with the accused and the deceased and would give evidence of violence she witnessed between approximately 1997 and 2003, including the accused punching Ms Locke eight to ten times around the head in 1998. The defence argued this evidence was too remote in time (16 to 18 years before the alleged offence) and that the 1998 incident, which left no marks, was inconsistent with an intent to cause grievous bodily harm in 2015. Schmidt J rejected this reasoning, finding the evidence did have significant probative value when assessed together with the broader body of tendency and other evidence. The court noted that the case concerned whether violence, rather than accident, caused Ms Locke's death, and a longstanding tendency to act violently was relevant to that question.

Ms Large's tendency evidence: Ms Large's proposed tendency evidence concerned observing the accused throw a hot drink at Ms Locke. Schmidt J accepted the evidence was probative in a general sense, but concluded it was not sufficiently "influential in the context of fact-finding" to satisfy the significant probative value threshold under s 97, even when considered alongside other evidence. Ms Large's tendency evidence was therefore held inadmissible under ss 97 and 101.

Ms Large's relationship evidence: Ms Large remained able to give evidence about the volatile nature of the relationship she had observed, including the thrown drink incident. Schmidt J held this evidence was admissible as relationship evidence, consistent with the principle in Wilson v The Queen (1970) 123 CLR 334 and R v Frawley (1993) 69 A Crim R 208, which recognises that evidence of frequent and serious quarrelling between a couple can be relevant where it goes beyond ordinary domestic disagreement. The court was not satisfied that Ms Large's evidence should be excluded under s 137, noting that its probative value was not outweighed by the danger of unfair prejudice, particularly given that she could be cross-examined on what she observed.

Orders Made

• Ms Large's evidence is not admissible as tendency evidence
• Ms Large's evidence is admissible as relationship evidence and should not be excluded under s 137
• Publication restriction lifted - trial concluded

Key Takeaways

  • Under ss 97 and 101 of the Evidence Act 1995 (NSW), tendency evidence is not assessed in isolation: Schmidt J confirmed, following Hughes v The Queen [2017] HCA 20, that disputed tendency evidence must be evaluated together with all other evidence the party proposes to adduce.
  • Remoteness in time does not automatically defeat a tendency evidence application; Schmidt J found that observed acts of violence from 16 to 18 years prior could still form part of admissible tendency evidence when assessed in the full evidentiary context.
  • Evidence that is insufficiently influential to satisfy the significant probative value test under s 97 may nonetheless be admissible as relationship evidence, serving the different purpose of contextualising the nature of the parties' relationship.
  • Relationship evidence of serious and frequent quarrelling between intimate partners remains admissible in murder trials where it goes beyond the ordinary difficulties the accused described to police, consistent with the principles in Wilson v The Queen and R v Frawley.
  • The availability of cross-examination on relationship evidence is a relevant factor when considering whether exclusion under s 137 is warranted.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 97, 98, 100, 101, 137

Cases:
- BC v R [2015] NSWCCA 327
- Hughes v The Queen [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Frawley (1993) 69 A Crim R 208
- R v Walker [2017] NSWSC 997 (related decision on hearsay)
- R v SK; SK v R [2011] NSWCCA 292
- Wilson v The Queen (1970) 123 CLR 334