AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 23 July 2024

R v Walmsley-Hume; R v Walmsley (No 2)

[2024] NSWSC 1691

Homicide
CRIME MURDER WHETHER CO

Citation: R v Walmsley-Hume; R v Walmsley (No 2) [2024] NSWSC 1691
Court: Supreme Court of New South Wales
Date: 23 July 2024
Judge(s): Wright J

Background

Two accused, referred to here as the male accused (the driver) and the female accused (the passenger), face a single count of murder. The Crown alleges that on 24 February 2022, the driver deliberately steered a white utility off the road at South Nowra and struck a pedestrian, killing him. The key issue for the driver is whether he intended to kill or cause grievous bodily harm. The key issues for the passenger are whether she was a party to a joint criminal enterprise and whether she later assisted the driver knowing he had committed murder.

To establish motive and intention, the Crown relied on evidence of a history of animosity between the accused and the deceased, including a series of prior confrontations dating back to 2018. The most significant of these was an incident on 7 January 2022, less than two months before the fatal collision, during which the driver allegedly drove towards the deceased's family members and then, after a physical altercation, made explicit threats against the deceased's life.

Two pre-trial admissibility applications came before Wright J. The first concerned paragraphs of a statement made by a juvenile witness (given the pseudonym AA), which described overheard conversations about arranging for a bikie gang member to shoot the deceased. The second concerned the admissibility of an electronically recorded interview with the driver (the ERISP) conducted on 7 April 2022.

  • Whether paragraphs 13 and 14 of AA's statement should be excluded under section 137 of the Evidence Act 1995 (NSW) on the basis that their probative value was outweighed by the danger of unfair prejudice, particularly the risk of an emotional jury response to references to an outlaw motorcycle gang (OMCG)
  • Whether the ERISP should be excluded under section 138 of the Evidence Act as evidence obtained by impropriety, on the basis that police conduct during the interview was improper
  • Whether the ERISP should alternatively be excluded under sections 135 or 137 of the Evidence Act for unfair prejudice

Decision

Paragraphs 13 and 14 of AA's statement: Wright J accepted that both paragraphs carried significant probative value. They were directly relevant to the driver's intention and, in the case of paragraph 14, to the passenger's knowledge of the murder. However, the court identified a real danger of unfair prejudice arising from the references to the Comancheros OMCG: a jury might react emotionally to that association and reason improperly. Wright J found that simply directing the jury on the limited use of the evidence was insufficient to adequately address this danger, given the inflammatory nature of bikie gang references in the context of a murder trial.

The court's solution was to admit both paragraphs but to excise all references to bikies, outlaw motorcycle gangs, and any person's gang membership. In that redacted form, Wright J was satisfied that the probative value was not outweighed by the danger of unfair prejudice. The court also made a suppression order prohibiting publication of the unredacted paragraphs, including any reference to bikie or OMCG connections, until the conclusion of the trial.

The ERISP: The driver objected to the ERISP on the grounds that police conduct during the interview amounted to impropriety under section 138. The court examined the circumstances in which the interview was conducted, including the driver's age, Indigenous background, and whether he genuinely understood his right not to answer questions. Wright J found that the driver had received advice from the Aboriginal Legal Service, that he understood his rights, and that he made a deliberate decision to participate in the interview in order to have the evidence against him disclosed. On that basis, the court rejected the impropriety argument and declined to exclude the ERISP under section 138.

Wright J also rejected exclusion under sections 137 and 135. The court found that the alleged prejudice either did not arise or was not sufficient to outweigh the probative value of the interview. The ERISP was accordingly ruled admissible.

Orders Made

  • Paragraphs 13 and 14 of AA's statement of 4 July 2024 are admissible in redacted form, with all references to bikies, outlaw motorcycle gangs, or any person's gang membership removed
  • The suppression order made on 15 July 2024 was varied so that it prohibits publication of the evidence in paragraphs 13 and 14 only to the extent those paragraphs contain references to bikies, an outlaw motorcycle gang, or any person's gang membership, or any information or submissions concerning that evidence, until the conclusion of the trial or further order, applying throughout the Commonwealth of Australia
  • The ERISP given by the driver on 7 April 2022 is not inadmissible under sections 138, 137, or 135 of the Evidence Act 1995 (NSW)

Key Takeaways

  • Under section 137 of the Evidence Act, a court may admit prejudicial evidence in a redacted form where excising the most inflammatory elements adequately addresses the danger of unfair prejudice without destroying the evidence's probative value.
  • References to outlaw motorcycle gang membership were treated as sufficiently inflammatory to create a genuine risk of an emotional jury response, even where a limiting direction might otherwise have been considered adequate.
  • A finding that an accused understood their rights and made a deliberate, informed choice to participate in a police interview will weigh heavily against exclusion of that interview under section 138, even where the accused is young, Indigenous, and in custody.
  • Receipt of legal advice prior to a police interview is a significant factor in assessing whether evidence was "obtained by impropriety" for the purposes of section 138.
  • Where probative value and unfair prejudice are assessed under both sections 135 and 137, the court may apply consistent reasoning across both provisions where the factual findings are the same.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 135, 137, 138, 142, 192A
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 8(1)(a)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 122
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Kadir v The Queen; Grech v The Queen (2020) 267 CLR 109; [2020] HCA 1
- R v Camilleri (2007) 68 NSWLR 720; [2007] NSWCCA 36
- R v Hawkins [2023] NSWSC 1370
- Ridgeway v the Queen (1995) 184 CLR 19; [1995] HCA 66