Citation: R v Wilson (No 2) [2017] NSWSC 1673
Court: Supreme Court of New South Wales
Date: 1 December 2017
Judge: Schmidt J
Background
The accused, Ms Wilson, faced a special hearing on a murder charge. The Crown's case involved the death of Mr Shepstone, who had been in a relationship with the accused. Two defence witnesses, a foster son and a disability support worker, each gave statements describing injuries they had observed on the accused over the years.
The defence relied on those statements in support of a tendency notice. That notice identified two tendencies: that Mr Shepstone had a tendency to act violently toward women in his relationships, and that Ms Wilson had a tendency not to report or seek prosecution of serious assaults committed against her.
The Crown objected to specific portions of both statements, arguing they contained inadmissible opinion evidence falling outside the exception in s 78(b) of the Evidence Act 1995 (NSW). Schmidt J ruled on 29 November 2017 to reject those objections, and this judgment sets out the reasons for that ruling.
Legal Issues
- Whether the disputed portions of the witnesses' statements constituted lay opinion evidence within the exception in s 78(b) of the Evidence Act 1995 (NSW)
- Whether it was "necessary" for those opinions to be received in order to obtain an adequate account or understanding of each witness's perception of the injuries they observed
Decision
The disputed evidence from the foster son, Mr Wellington, included his description that bruising he observed on the accused's face was "similar to other bruising I have seen caused by punches," and that bruising to her wrists "looked to me to be grab marks." The Crown's objection targeted only that descriptive opinion content. Schmidt J found both opinions were admissible under s 78(b).
The reasoning turned on the function of the "necessary" requirement as explained by the High Court in Lithgow City Council v Jackson (2011) 244 CLR 352. That requirement is not satisfied merely because opinion evidence is helpful or not unreasonable. Rather, it addresses an internal relationship within the witness's own evidence: whether the opinion is needed because the primary perceptions are too evanescent or complex to be separately narrated, or because omitting the opinion would deprive the court of an adequate account of what the witness perceived.
Without Mr Wellington's characterisation of the injuries, the court would have had no description of the nature of what he saw, and therefore no adequate basis to understand his belief that the accused was a victim of Mr Shepstone's violence or his view that she was lying about the cause. The opinion was necessary to give the court an adequate account of his perceptions, even though he did not separately identify every underlying observation that led him to it.
The same conclusion applied to the disability support worker, Ms Goodwin, who described bruising she had observed as looking "like the result of punches." Absent that opinion, the court would have lacked any adequate account of the nature of the injuries she perceived, or of the basis for her belief that the accused was being injured by Mr Shepstone. Schmidt J held that s 78(b) permitted both opinions to be received, while noting that questions of weight were not yet before the court.
Orders Made
No orders were made in this decision.
Key Takeaways
- Section 78(b) of the Evidence Act 1995 (NSW) permits lay opinion evidence where it is necessary to obtain an adequate account or understanding of a witness's perception, not merely where it would be helpful or not unreasonable to admit it.
- The "necessary" requirement in s 78(b) addresses a relationship internal to the witness's evidence: the connection between their perceptions and the opinion formed from them, not the absence of better evidence from another source.
- Where omitting an opinion would leave the court with no adequate account of the nature of injuries a witness observed, that opinion satisfies the s 78(b) necessity test even if the witness cannot separately identify every underlying observation that led to it.
- Under Lithgow City Council v Jackson, s 78 is an exception to a rule of exclusion and is not to be construed so broadly as to nullify that rule; construing "necessary" as merely "conducive" or "not unreasonable" would go too far.
- A lay witness's description of bruising as resembling the result of punches or grab marks can constitute admissible opinion evidence under s 78 where that characterisation is integral to conveying what the witness perceived, rather than being a separable conclusion about causation.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 78 (lay opinion evidence exception)
Cases:
- Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36