R v Walker (No 2) [2017] NSWSC 1008

Supreme Court New South Wales

Medium Neutral Citation: R v Walker (No 2) [2017] NSWSC 1008 Hearing dates: 27 July 2017 Date of orders: 31 July 2017 Decision date: 31 July 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Evidence admissible. Catchwords: EVIDENCE – tendency evidence – murder – death of domestic partner of accused – certain tendency evidence admissible – other evidence admissible as relationship evidence Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: BC v R [2015] NSWCCA 327 Hughes v The Queen [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Frawley (1993) 69 A Crim R 208 R v Walker [2017] NSWSC 997 R v SK; SK v R [2011] NSWCCA 292 Wilson v The Queen (1970) 123 CLR 334 Category: Procedural and other rulings Parties: Regina Jamie Christopher Walker Representation: Counsel: Mr C Maxwell QC with Ms J M Smith (Crown) Ms B J Rigg SC (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Jamison Lawyers (Accused) File Number(s): 2015/124540 Publication restriction: Nil

Judgment 1. As well as the hearsay notice which I dealt with in R v Walker [2017] NSWSC 997, the Crown has served a tendency notice under s 97 of the Evidence Act 1995 (NSW). The tendency which is sought to be proved is Mr Walker's tendency to act violently toward Ms Locke, with whom he was in an intimate domestic relationship. The circumstances relied on are specified to be: "● The violence occurred in the home of Jamie Walker and the deceased. ● The violence included kicking, punching and pushing the deceased. ● The violence included throwing objects at the deceased. ● The violence including pushing the deceased down the stairs." 1. There is no issue that Mr Walker and Ms Locke were in an intimate domestic relationship. Expert evidence will be called about the injuries which Ms Locke suffered and their potential causes. 2. There will also be evidence that from the time that Mr Walker made the 000 call on 27 April 2015, he gave a number of differing accounts about how Ms Locke came to be injured as she was and denied to police that they had been arguing, before Ms Locke was injured. 3. Expert evidence about the possible causes of Ms Locke's injuries, will not be consistent with Mr Walker's accounts of how Ms Locke came to be injured and neighbours' evidence will also contradict aspects of Mr Walker's accounts. There will be evidence, for example, that Mr Walker and Ms Locke had been heard arguing and he had been observed pulling her to the ground. 4. There is no objection to most of the tendency evidence which the Crown proposes to rely on. The evidence to which objection is taken is that which Ms Large and Elisha Locke would give. There was no suggestion that their evidence would not be relevant to what is in issue, that is, that it could not "rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue" in these proceedings, if accepted: Evidence Act s 55(1). Mr Walker's case was rather that the probative value of the disputed evidence was low and the prejudice of its receipt high and so it was not admissible. 5. Section 97 provides: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party." 1. As discussed in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [46], the significance of the probative value of tendency evidence under s 97(1)(b), depends on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. "So understood, the evidence must be influential in the context of fact-finding": IMM at [46]. In resolving what lies in issue, an assumption must be made that it will be accepted by the jury: at [52]. 2. Section 101 also arises for consideration. It provides: "101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant." 1. The Crown seeks to rely on the evidence of Elisha Locke and Ms Large to help prove, to the requisite standard, that Mr Walker was responsible for the injuries Ms Locke suffered on 27 April 2015. In issue is whether the evidence they would give has significant probative value and if it does, whether its probative value substantially outweighs any prejudicial effect it may have on Mr Walker. 2. In resolving what is in issue, other evidence, including the tendency evidence to which objection was not pressed, must be taken into account. As discussed in Hughes v The Queen [2017] HCA 20 at [61], evidence relied on to support a tendency does not need to be considered "by itself". Other evidence to be adduced must thus be taken into account, in determining the probative value of the disputed evidence. Even if particular tendency evidence is weak by itself, it must be assessed together with the other evidence. 3. In this case that includes, for example, the evidence which neighbours such as Mr Smith, would give. Mr Smith had been a neighbour for about six or seven years when Ms Locke died. He will give relationship evidence to which no objection was taken. The tendency evidence he would give, which is also not objected to, concerns: "10. Page 20 - observed Walker grab Locke, push Locke and punch on at least 6 occasions. 11. 21 - Locke came to his front door. Observed red mark on her face. Locke said "He punched me and pushed me down the stairs." 22 - about 8 weeks ago, he heard screaming. Locke told him to call the police. He saw through the screen door Walker punch Locke in the face and body about 10 times. She then had a fit. During the assault she opened the door. Walker said "You want to call the police you are nothing but a fuckin' dog"". 1. It is not necessary to outline all of the tendency evidence other witnesses would give about Mr Walker's violence towards Ms Locke. It should be noted, however, that it is only Elisha Locke who would give evidence of Mr Walker having acted violently towards Ms Locke prior to 2009, apart from Mr Walker's mother, who would give evidence of having observed pushing.