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Supreme Court 15 May 2025

R v Eriksen (No 3)

[2025] NSWSC 562

HomicideDomestic & family violence
CRIMINAL PROCEDURE TRIAL VOIR DIRE PRE EVIDENCE HEARSAY

Citation: R v Eriksen (No 3) [2025] NSWSC 562
Court: Supreme Court of New South Wales
Date: 15 May 2025
Judge(s): Coleman J

Background

The accused is charged with the murder of his long-term domestic partner, who died on 9 April 2023 from multiple stab wounds. The accused admits he stabbed the deceased but disputes that he had the requisite intent to kill or cause grievous bodily harm. He initially indicated he would rely on a defence of sane automatism (sleepwalking), though that defence has since been removed from the trial.

In the months before her death, the deceased made a series of statements to friends, family, and a counsellor about the state of the relationship. Those statements were made by text message, Facebook Messenger, and in conversation, and were also recorded in clinical notes. The Crown sought to rely on those statements as evidence of the nature of the relationship and the deceased's intentions.

This judgment contains Coleman J's reasons for pre-trial rulings on the admissibility of those statements, delivered on voir dire (a preliminary hearing held to determine whether evidence is admissible before it goes to the jury).

Legal Issues

  • Whether the deceased's statements to friends, family, and a counsellor are admissible as relationship evidence, given that they constitute hearsay
  • Whether those statements fall within the exception in section 66A of the Evidence Act 1995 (NSW) as contemporaneous representations of the deceased's state of mind, feelings, intention, or knowledge
  • Whether any of the representations should be excluded, including under section 137 of the Evidence Act (which permits exclusion where the danger of unfair prejudice outweighs probative value)
  • Whether the accused's proposed defence of sane automatism by dissociation can be left to the jury

Decision

Issue 1: The sleepwalking defence

Coleman J found there is no evidence from which an inference could be drawn that there was a reasonable possibility the accused's actions were not wilful or voluntary at the time of the stabbing (at [20]-[21]). Despite being given multiple opportunities, the accused produced no expert evidence in support. The defence of sane automatism by dissociation will not be left to the jury (at [21]). As a result, the only matter in issue at trial is whether the accused intended to kill the deceased or cause her grievous bodily harm (at [22]).

Issue 2: Relevance of relationship evidence

The court accepted the Crown's submission that evidence of the relationship's deterioration is relevant to the accused's intent. The financial dependence of the accused on the deceased, the stress that dependence caused, and the deceased's expressed desire to end the relationship could rationally affect an assessment of the accused's state of mind at the time of the stabbing (at [30]). The weight to be given to that evidence will be a matter for the jury (at [30]).

Issue 3: Admissibility under section 66A

Section 66A provides an exception to the hearsay rule for representations that were made when the person was in a position to observe the relevant matter, and where those representations concern the person's state of mind, intention, feelings, sensations, or knowledge. The court examined each representation individually. Coleman J held that representations by the deceased expressing her own feelings, fears, and intentions fell within section 66A and are admissible (at [33]-[34], [47]). Items 1-5, 7-9, and 11-15 from the Crown's table were admitted (at [47]).

Issue 4: Representations falling outside section 66A

The court drew a clear line between representations about the deceased's own state of mind and those about the accused's state of mind. A representation by the deceased as to the accused's feelings or reactions is not a representation about her own state of mind and does not qualify under section 66A (at [41]). Item 10, a representation of that nature, was ruled inadmissible (at [49]). Item 6 was partially admitted, with a use limitation: certain contextual statements within it were admitted not as proof of the truth of their contents, but solely to assist the jury in understanding the contemporaneous representation the deceased made about her own state of mind (at [42], [48]). Clinical notes from the deceased's counsellor recording her intention to cease financially supporting the accused and to leave the relationship were accepted as admissible under section 66A (at [45]).

Orders Made

  • Items 1-5, 7-9, and 11-15 from the table of representations (MFI VD 11): admissible
  • Item 6: partially admissible, subject to restrictions on use
  • Item 10: not admissible

Key Takeaways

  • Under section 66A of the Evidence Act 1995 (NSW), a deceased person's contemporaneous representations about their own state of mind, feelings, or intentions may be admitted in a murder trial, even though they are otherwise hearsay, provided they satisfy the requirements of that exception (at [33]-[34]).

  • A representation by a deceased person about a third party's state of mind or feelings does not qualify as a contemporaneous representation of the deceased's own state of mind and falls outside the scope of section 66A (at [41]).

  • Contextual statements that do not themselves qualify under section 66A may still be admitted for a non-hearsay purpose, limited to assisting the jury in understanding an admissible representation, provided their truth is not relied upon (at [42]).

  • Clinical notes prepared by a counsellor, recording a client's contemporaneous representations about their intentions and emotional state, can fall within the section 66A exception and be admitted in evidence (at [45]).

  • For a defence of sane automatism to be left to the jury, there must be some evidence capable of raising a reasonable possibility that the accused's actions were not wilful or voluntary; the accused's assertion alone is insufficient, and the absence of any corroborating or expert evidence will see the defence withdrawn from the jury's consideration (at [19]-[21], applying R v Falconer (1990) 171 CLR 30).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 59, 62, 66A, 137

Cases
- Boral Resources (Vic) Pty Ltd v CFMEU (Ruling No 2) [2015] VSC 459
- R v Camelo-Gomez (No 2) [2022] NSWSC 211
- R v Falconer [1990] HCA 49; 171 CLR 30
- R v Singh (No 4) [2021] NSWSC
- R v Walker [2017] NSWSC 997
- Re HIH Insurance Ltd (in liq) [2015] NSWSC 790
- Wilson v R (1970) 123 CLR 334