Citation: [2025] NSWSC 739
Court: Supreme Court of New South Wales
Date: 17 June 2025
Judge(s): Coleman J
Background
The accused is charged with the murder of a woman with whom he shared a unit in Mascot, with the alleged offence occurring on 9 April 2023. The accused admits he stabbed the deceased but denies he intended to kill her or cause grievous bodily harm. He appears unrepresented at trial by his own choice.
Following his arrest on the night of the alleged murder, the accused underwent forensic procedures at Mascot Police Station. During those procedures, Senior Constable Anthony Smith told the accused that the deceased had passed away. The accused then volunteered, without being asked, that "there have been issues for the past seven to nine months."
The Crown sought to tender that statement as relationship evidence and as bearing on the accused's state of mind at the time of the stabbing. The accused objected to the evidence being admitted.
Legal Issues
- Whether the accused's spontaneous remark to Senior Constable Smith was relevant, including as relationship evidence and as bearing on the accused's intent at the time of the stabbing.
- Whether the statement constituted an implied admission that the accused killed the deceased as a result of relationship conflict.
- Whether the circumstances in which the statement was made were such as to make it unlikely the truth of the admission was adversely affected, as required by s 85 of the Evidence Act 1995 (NSW).
- Whether the court should exercise its discretion to exclude the evidence under s 90 of the Evidence Act 1995 (NSW) on the basis that its admission would be unfair to the accused.
Decision
Coleman J admitted the evidence. The statement was found to be relevant as relationship evidence, providing context for the events surrounding the deceased's death and connecting to the "argument" the accused had referred to in his triple-zero call earlier that evening. Consistent with the Court of Criminal Appeal's reasoning in R v Clark, evidence of a hostile or troubled relationship can shed light on both whether an accused committed a killing and what their mental state was at the time.
The Crown also put the statement forward as an implied admission: the immediacy of the accused's reference to relationship troubles, made directly after learning of the deceased's death, suggested in the accused's own mind a link between her death and the state of their relationship. Coleman J noted that the statement was consistent with what the accused had told MensLine and Family and Community Services in February 2023, describing problems in the relationship.
On the s 85 question, the court was satisfied the circumstances of the statement were such as to make it unlikely that the truth of the admission was adversely affected. The accused had been cautioned, had been offered legal advice and declined it, appeared rational, exercised his procedural rights deliberately (including declining to have the forensic procedures recorded), and made the statement voluntarily without any prompting from police. The recording had been turned off before the remark was made.
The court also declined to exercise its discretion under s 90 to exclude the evidence. Coleman J concluded it would not be unfair to permit the Crown to use the statement, given the circumstances in which it was made. Separately, the court noted that the statement would also be relevant if the accused's potential automatism (sleepwalking) defence were ultimately left to the jury, as the remark contained no reference to the accused being asleep or acting involuntarily at the time of the stabbing.
Orders Made
• Evidence of the statement made to SC Smith was admitted
Key Takeaways
- A spontaneous remark made by an accused person during forensic procedures, without any police questioning, can satisfy s 85 of the Evidence Act 1995 (NSW) where the surrounding circumstances make it unlikely the truth of the admission was adversely affected.
- Relationship evidence is admissible not only to establish whether an accused committed a killing, but also to illuminate their mental state at the time, consistent with the Court of Criminal Appeal's reasoning in R v Clark [2001] NSWCCA 494.
- Where multiple inferences are available from an admission, the court at the admissibility stage does not weigh those competing inferences against each other. That task falls to the jury once all evidence is complete, and the court must assess probative value on the basis that the evidence will be accepted as credible and reliable (following R v Burton [2013] NSWCCA 335).
- The exercise of procedural rights by an accused (such as declining to have forensic procedures recorded) can be relevant to the contextual assessment of whether an admission was made in circumstances undermining its reliability.
- Evidence relevant to one issue in a trial (here, relationship context) may simultaneously be relevant to separate issues, including the accused's intent and the viability of a defence such as automatism.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 85, 90
Cases
- R v Burton [2013] NSWCCA 335
- R v Clark [2001] NSWCCA 494; 123 A Crim R 506
- R v Eriksen (No 3) [2025] NSWSC 562
- Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37
- R v Singh (No 4) [2021] NSWSC 75
- Severino v R [2017] NSWCCA 80
- Wilson v R (1970) 123 CLR 334