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Supreme Court 10 August 2017

R v Walker (No 7)

[2017] NSWSC 1049

HomicideDomestic & family violence
CRIMINAL LAW EVIDENCE HEARSAY EVIDENCE EVIDENCE ADMISSIBLE REASONS FOR DECISION

Citation: R v Walker (No 7) [2017] NSWSC 1049
Court: Supreme Court of New South Wales
Date: 10 August 2017
Judge(s): Schmidt J

Background

The accused stood trial for the death of his partner, Ms Locke. The Crown's case relied in part on tendency evidence, asserting that the accused had a history of violence towards the deceased. The circumstances of Ms Locke's death were disputed, with the central question being whether her fatal injury resulted from a deliberate act by the accused or from an accident.

As part of the proceedings, the Crown served a hearsay notice seeking to adduce evidence from Dr Gao, a treating doctor who had seen Ms Locke in early 2015, months before her death. Dr Gao's statement recorded representations made by Ms Locke about her injuries, her partner's violence, her state of mind, and her reluctance to obtain an Apprehended Violence Order (AVO) against the accused.

The parties had also reached agreement on certain facts, including that neither police nor Ms Locke had actually obtained an AVO against the accused, and that the accused had never been charged with any domestic violence offence. This context made the admissibility of Ms Locke's state-of-mind representations a live issue for the trial.

  • Whether the representations recorded in Dr Gao's statement were admissible as hearsay evidence under s 66A of the Evidence Act 1995 (NSW), which covers representations about feelings, sensations, intentions, and state of mind.
  • Whether the representations were relevant under s 55 of the Evidence Act, in that they could rationally affect the probability of a fact in issue.
  • Whether, even if relevant, the evidence should be excluded under s 135 (general discretion to exclude) or s 137 (exclusion where probative value is outweighed by the danger of unfair prejudice) of the Evidence Act.

Decision

Schmidt J ruled that the representations recorded at paragraph 6 of Dr Gao's statement fell within s 66A of the Evidence Act, for reasons consistent with those given in the earlier related ruling concerning the evidence of Dr Yu (R v Walker [2017] NSWSC 997 at [81]–[89]). The representations concerned Ms Locke's feelings, state of mind, and intentions, which are precisely the matters s 66A is designed to capture.

On relevance, the Court accepted that the representations could logically explain why Ms Locke never obtained an AVO despite having told others she had done so or intended to do so. Her expressed reluctance, including statements such as "I don't deserve it" and "Don't want to cause trouble", bore directly on the reliability of her other hearsay complaints about domestic violence. That question of reliability was itself a live issue for the jury, given the agreed fact that many of Ms Locke's representations had been untrue.

The Court rejected the argument that admission of the evidence would be unfairly prejudicial. While the representations were prejudicial to the accused, the Court found that unfair prejudice had not been established, applying the reasoning of Heydon JA in R v Clark (2001) 123 A Crim R 506 at [164]–[165]. Relevant to that conclusion was the availability of Dr Gao for cross-examination, and the fact that the jury had already received substantial evidence about Ms Locke's difficult personal circumstances and the accused's alleged acts of violence.

Schmidt J also found that excluding the representations would distort the jury's understanding of the relationship and Ms Locke's conduct. Without them, the jury would lack proper context for assessing whether her death resulted from accident or a deliberate act, which was the central question at trial.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 66A of the Evidence Act 1995 (NSW), hearsay representations concerning a deceased person's feelings, intentions, and state of mind are admissible where the relevant conditions are met, including in domestic violence contexts where the deceased made complaints about a partner.
  • Representations explaining why a victim did not pursue an AVO can be relevant under s 55 where the jury must assess the reliability of other hearsay complaints about violence, and where the absence of formal protection orders might otherwise be used to cast doubt on those complaints.
  • The Supreme Court confirmed that prejudicial effect alone does not warrant exclusion under ss 135 or 137 of the Evidence Act; the prejudice must be shown to be unfair, consistent with the approach in R v Clark (2001) 123 A Crim R 506.
  • The availability of a witness for cross-examination on the circumstances in which representations were made remains a relevant consideration in the balancing exercise under ss 135 and 137.
  • Excluding contextual hearsay evidence can itself distort the jury's assessment by leaving the relationship and the deceased's conduct without adequate explanation, a factor that weighs against exclusion.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 66A, 135, 137

Cases
- R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494
- R v Walker [2017] NSWSC 997