AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Supreme Court 27 July 2017

R v Walker

[2017] NSWSC 997

HomicideDomestic & family violence
EVIDENCE HEARSAY EVIDENCE MURDER DEATH OF DOMESTIC PARTNER OF ACCUSED DISPUTED REPRESENTATIONS CERTAIN REPRESENTATIONS ADMISSIBLE

Citation: R v Walker [2017] NSWSC 997
Court: Supreme Court of New South Wales
Date: 27 July 2017
Judge(s): Schmidt J

Background

The accused was charged with murdering his de facto partner of approximately twenty years. The Crown alleged she died in April 2015 from injuries the accused inflicted during a violent episode that was partly witnessed by neighbours. The accused gave inconsistent accounts of her injuries to ambulance officers and police.

The deceased had a complex personal history, including serious physical and mental health conditions, epilepsy, suicidal ideation, and participation in a methadone treatment program. Evidence also indicated she had a pattern of making false representations about personal matters, including false claims of cancer and inaccurate statements about her family.

Before trial, the Crown sought to lead hearsay evidence of representations the deceased had made to various witnesses about the accused's violence towards her. The accused objected to certain of those representations on grounds of admissibility and, alternatively, sought their exclusion on discretionary grounds.

  • Whether specific representations made by the deceased to witnesses were admissible as exceptions to the hearsay rule under ss 65(2)(b) or (c) of the Evidence Act 1995 (NSW), given she was unavailable as a witness by reason of death.
  • Whether any admissible representations should nonetheless be excluded under s 135 or s 137 of the Evidence Act on the basis that their probative value was outweighed by the danger of unfair prejudice to the accused.
  • Whether the deceased's known tendency to make false representations about personal matters undermined the reliability of her statements about the accused's conduct.

Decision

Schmidt J applied the framework in Sio v The Queen [2016] HCA 32, which requires a court to identify each particular representation sought to be tendered, the specific fact it is said to prove, and then assess whether the circumstances of that representation's making satisfy the relevant admissibility conditions. Her Honour emphasised that this process must be conducted representation by representation.

In relation to representations made to a witness identified as Mr Katte, the court found that the statements were made the day after a fight, while the deceased had visible injuries including a fat lip and bruising. That timing satisfied the requirement in s 65(2)(b) that the representation was made "shortly after" the asserted fact occurred. The court accepted that the deceased was still under the "proximal pressure of events" at the time.

The court rejected the argument that the deceased's emotional state, her methadone treatment, or her general propensity to make false statements rendered these particular representations likely fabrications. The deceased's long-standing pattern of not reporting the accused's violence to police, despite telling others she had done so, was itself treated as consistent with the representations being genuine rather than contrived. The court was satisfied that the circumstances made fabrication unlikely, satisfying s 65(2)(b).

On the question of exclusion under s 137, the court found that the probative value of the representations was not outweighed by the danger of unfair prejudice to the accused. The representations were therefore admitted.

Orders Made

• Evidence of representations made by Ms Locke to Mr Katte in 2009 is admissible
• Evidence is not to be excluded under s 137 of the Evidence Act

Key Takeaways

  • Under s 65(2)(b) of the Evidence Act 1995 (NSW), a deceased person's out-of-court representation is admissible in criminal proceedings if it was made when or shortly after the asserted fact occurred and in circumstances making fabrication unlikely. The assessment must be conducted individually for each representation sought to be tendered: Sio v The Queen [2016] HCA 32.

  • A victim's general tendency to make false statements about unrelated personal matters does not automatically render representations about an accused's conduct unreliable for the purposes of s 65(2)(b), particularly where other evidence corroborates the conduct described.

  • Relationship evidence, including evidence of a volatile or violent domestic relationship, is admissible both to rebut a defence of accident and to establish the accused's state of mind at a relevant time.

  • Transactional evidence of events immediately before an alleged offence, including evidence of quarrelling and associated words, gestures, and acts, is also admissible and may demonstrate the accused's state of mind proximate to the alleged offence.

  • Where a victim's pattern of non-reporting to police was itself explicable by the dynamics of the relationship, the Supreme Court treated that pattern as supporting, rather than undermining, the genuineness of the victim's representations about the accused's violence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 65, 66A, 135, 137

Cases
- Sio v The Queen (2016) 90 ALJR 967; [2016] HCA 32
- Harriman v The Queen (1989) 167 CLR 590
- Wilson v The Queen (1970) 123 CLR 334
- R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97
- R v Serratore [2001] NSWCCA 123
- Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
- Drew v R [2016] NSWCCA 310
- Harris v R (2005) 158 A Crim R 454; [2005] NSWCCA 432
- Natasha Youkhana v R [2013] NSWCCA 85
- R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
- R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494
- R v Gittany (No 4) [2013] NSWSC 1737
- R v Grogan & Slacke (No 1) [2013] NSWSC 1191
- R v Mankotia (1998) NSWSC 295
- R v Toki (No 3) [2000] NSWSC 999
- Williams v The Queen (2000) 119 A Crim R 490