Citation: R v Wrigley (No 1) [2025] NSWSC 299
Court: Supreme Court of New South Wales
Date: 1 April 2025
Judge(s): Ierace J
Background
The accused faces trial on a count of murder, together with three counts relating to the unlawful use or disposal of property. The Crown alleges that on the evening of 22 and 23 January 2023, the accused drove to a remote rural property near Nyngan, killed the deceased by inflicting blunt force head injuries, stole a vehicle and tools, and then destroyed the vehicle by fire.
The Crown's case is circumstantial and relies on, among other things, mobile phone location evidence and the content of text messages and calls. The accused filed an alibi notice under the Criminal Procedure Act 1986 (NSW) placing himself parked in his Toyota Tarago less than one kilometre outside Nyngan during the relevant period.
The Crown sought to call the accused's de facto partner, who resided in Warren approximately 78 kilometres from Nyngan, as a witness. Her phone was associated with several calls and text messages to the accused's phones on the morning of 23 January 2023, and the texts suggest she was seeking to locate him for a rendezvous. She declined to give a statement to police and, through her independent solicitor, formally objected to being called as a witness.
Legal Issues
- Whether the Crown's proposed witness qualified as a person in a "de facto relationship" with the accused, satisfying the threshold requirement under s 18(2) of the Evidence Act 1995 (NSW)
- Whether there was a likelihood that giving evidence would cause harm to the relationship between the witness and the accused, within the meaning of s 18(6)(a)
- Whether there was a likelihood that harm would be caused to the witness or her children if she were required to give evidence, within the meaning of s 18(6)(b)
Decision
Issue 1: De Facto Relationship (s 18(2))
Ierace J accepted, for the purposes of the application, that the witness and the accused were in a de facto relationship, satisfying the threshold under s 18(2). The court noted that the accused had previously denied to police that the witness was his partner, describing her as a "lady friend," but accepted the evidence of their cohabitation and intimate relationship from approximately May 2022 (at [10]-[11]).
Issue 2: Likelihood of Harm to the Relationship (s 18(6)(a))
The witness gave sworn evidence stating she did not anticipate her relationship with the accused would be affected by her giving evidence. However, the court received information indicating that her evidence could damage the accused's alibi defence. Ierace J observed that the witness presented as an unsophisticated person and took the view that, if her evidence harmed the defence case, it was inevitable that this would be likely to adversely affect the relationship, notwithstanding her initial assessment (at [13]).
Issue 3: Likelihood of Harm to the Witness and Her Children (s 18(6)(b))
The witness raised concerns for her own safety and that of her three youngest children, noting that their home had been visited at night approximately five times by unknown men shining torches since the accused's arrest. She also expressed fear about an unidentified male she had heard of. The court found that the evidence did not disclose a reasonable possibility of harm befalling the witness or her children if she were to give evidence, noting no apparent connection between the night-time visits and the unidentified person. In weighing s 18(6)(b), the court also took into account the seriousness of the murder charge and the direct relevance of the potential testimony (at [14]-[15]).
The court accordingly ruled the witness to be a compellable witness and rejected her objection to giving evidence (at [16]-[17]).
Orders Made
- The objection by the witness to being called as a witness in the trial is rejected.
Key Takeaways
- Under s 18 of the Evidence Act 1995 (NSW), a de facto partner of an accused may object to giving evidence, but that objection is subject to the court's assessment of the likelihood of harm to the relationship and to the witness personally.
- A witness's own assessment that her relationship would not be harmed by giving evidence is not determinative. The Supreme Court found it appropriate to look beyond the witness's stated view and assess the likely effect of potentially damaging testimony against the accused's alibi (at [13]).
- Section 18(6)(b) requires a reasonable possibility, not merely a subjective fear, of harm to the witness or family members. Unspecific and unconnected accounts of night-time visits and vague fears about an unnamed individual were insufficient to establish that threshold (at [15]).
- The seriousness of the charge and the direct relevance of the witness's potential evidence were factors the court weighed when considering whether to compel testimony under s 18(6)(b) (at [14]).
- A court may stand a witness down during s 18 proceedings to ensure they receive adequate independent legal advice before the objection is finally determined, particularly where the witness may not fully appreciate the consequences of their evidence for the accused's case (at [8]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 150
- Evidence Act 1995 (NSW), ss 18, 18(2), 18(6)(a), 18(6)(b)
Cases
- Not stated