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Supreme Court 7 August 2017

R v Walker (No 6)

[2017] NSWSC 1029

Assault & violenceHomicideDomestic & family violence
CRIMINAL LAW EVIDENCE TENDENCY EVIDENCE

Citation: R v Walker (No 6) [2017] NSWSC 1029
Court: Supreme Court of New South Wales
Date: 7 August 2017
Judge: Schmidt J

Background

The accused stood trial for the fatal injury of his domestic partner. A central factual question was whether her death resulted from accident or from a deliberate unlawful act. The nature and history of the relationship between the accused and the deceased was directly relevant to that question.

The Crown sought to rely on evidence from the deceased's adult daughter, who had lived with the couple at two different stages of her life. Part of that evidence was tendered as tendency evidence, on the basis that it demonstrated the accused's propensity to act violently. Other parts of her evidence were contested on relevance and potential confusion grounds.

The ruling in this decision followed an earlier determination of the Crown's tendency notice in R v Walker (No 2) [2017] NSWSC 1008, where Schmidt J set out the applicable framework for assessing tendency evidence.

  • Whether evidence that the accused became violent toward the daughter when she intervened in a domestic argument could be admitted as tendency evidence showing a propensity to act violently toward the deceased.
  • Whether evidence of the daughter observing arguments (but no physical abuse) during a later period of cohabitation was admissible as relationship evidence.
  • Whether evidence of the deceased's emotional deterioration and her failure to leave the relationship despite her daughter's encouragement was relevant and admissible.

Decision

Schmidt J declined to admit the evidence of violence toward the daughter as tendency evidence. That incident, in which the accused became violent when the daughter intervened to support her mother during an argument, did not support the alleged tendency to act violently toward the deceased. The evidence concerned conduct directed at the daughter, not the deceased, and therefore said nothing about how the accused behaved toward his partner.

The court further found that this evidence lacked significant probative value even when assessed in conjunction with the other tendency evidence, applying the approach endorsed by the High Court in Hughes v The Queen [2017] HCA 20. Because the evidence did not bear on the alleged tendency, aggregating it with other evidence did not cure that deficiency.

The court accepted, however, that the daughter's observations during her later stay with the couple were admissible as relationship evidence. Her account of witnessing arguments but no physical abuse during that period contextualised the relationship over time. This was relevant and not excluded.

Similarly, the daughter's evidence that the deceased became increasingly depressed about the accused's treatment of her, and that the deceased never left despite encouragement to do so, was admitted as relationship evidence. This evidence was consistent with other expected evidence that the deceased remained in the relationship despite disclosing ongoing abuse to others. The submission that the daughter's lack of awareness of the deceased's mental health history would render the evidence confusing or misleading was rejected.

Orders Made

• Publication restriction lifted - trial concluded

Key Takeaways

  • Evidence of violence directed at a third party who intervened in a domestic dispute does not, without more, establish a tendency to act violently toward the primary victim of that dispute.
  • Under the framework confirmed in Hughes v The Queen [2017] HCA 20, tendency evidence must be assessed alongside all other evidence to be adduced, but aggregation cannot supply probative value that is simply absent from the evidence itself.
  • Relationship evidence contextualising the history and dynamics of a domestic relationship is admissible where it is relevant to the central factual issue, even if it does not reveal physical abuse directly.
  • Evidence of a victim's emotional deterioration and her continued presence in a relationship despite encouragement to leave can be admitted as relevant relationship evidence in a domestic homicide trial.
  • A witness's incomplete knowledge of the deceased's medical history does not automatically render the witness's observations confusing or misleading so as to warrant exclusion.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)

Cases:
- Hughes v The Queen [2017] HCA 20
- R v Walker (No 2) [2017] NSWSC 1008