Citation: R v Walker (No 5) [2017] NSWSC 1028
Court: Supreme Court of New South Wales
Date: 7 August 2017
Judge(s): Schmidt J
Background
The accused stood trial for an offence involving the death of Ms Locke. The Crown's case included evidence that the accused had a tendency to act violently towards the deceased, and it sought to lead hearsay evidence from a treating physician, Dr Yu, about occasions when Ms Locke had presented with suicidal ideation alongside physical injuries she attributed to the accused's violence.
During the hearing, the accused served a tendency notice under s 97 of the Evidence Act 1995 (NSW). The accused sought to establish that Ms Locke herself had a tendency to threaten self-harm or suicide in circumstances where she perceived a risk of not obtaining methadone on suitable terms.
There was no dispute that the evidence was admissible as context evidence, or that the tendency notice had been served late. The dispute concerned whether the evidence met the higher threshold of having "significant probative value" required for admission as tendency evidence under s 97.
Legal Issues
- Whether the tendency evidence proposed by the accused had "significant probative value" within the meaning of s 97(1)(b) of the Evidence Act 1995 (NSW), and was therefore admissible as tendency evidence rather than context evidence alone.
Decision
Schmidt J applied the principles from IMM v The Queen (2016) 257 CLR 300 and Hughes v The Queen [2017] HCA 20. Under those principles, the court must assume the jury would accept the evidence, and must assess its probative value by considering it alongside other evidence to be adduced. To qualify as tendency evidence, the evidence must be "influential in the context of fact-finding."
The central question was whether the cause of Ms Locke's fatal injury was the accused's act or acts, or instead an accident. Dr Yu's evidence included accounts of suicidal ideation by Ms Locke that she linked to the accused's violence. The accused's tendency evidence offered a potentially different explanation for that suicidal ideation: a pattern of threatening self-harm when at risk of not obtaining methadone.
Schmidt J was satisfied that the tendency evidence had significant probative value. It went beyond mere context by offering an alternative account of why Ms Locke may have expressed suicidal ideation on those occasions. The two tendencies advanced by the respective parties did not necessarily cancel each other out, but the evidence the accused sought to lead was capable of influencing the jury's fact-finding on the central issue of causation of death.
Accordingly, the tendency evidence was admitted under s 97.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 97 of the Evidence Act 1995 (NSW), tendency evidence is admissible only where it will have "significant probative value," a threshold requiring that the evidence be influential in the context of fact-finding, not merely relevant.
- Applying IMM v The Queen, the court must assume the evidence will be accepted when assessing probative value, and must consider the evidence alongside other evidence to be adduced, consistent with Hughes v The Queen.
- Evidence may be admissible as context while still falling short of the "significant probative value" threshold for tendency evidence; the two categories carry different admission requirements.
- The Supreme Court found that tendency evidence about a deceased person's conduct can carry significant probative value where it offers a genuinely different explanation for conduct that the Crown seeks to characterise in a particular way.
- The existence of competing tendency notices from each party does not, of itself, preclude admission; the tendencies advanced need not cancel each other out for both to be influential in resolving the facts in issue.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 97 (the tendency rule), s 100
Cases
- Hughes v The Queen [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Walker [2017] NSWSC 997
- R v Walker (No 2) [2017] NSWSC 1008