Supreme Court New South Wales Medium Neutral Citation: R v Walker (No 5) [2017] NSWSC 1028 Hearing dates: 4 August 2017 Date of orders: 04 August 2017 Decision date: 07 August 2017 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Tendency evidence admissible Catchwords: CRIMINAL LAW – evidence – tendency notice Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Hughes v The Queen [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Walker [2017] NSWSC 997 R v Walker (No 2) [2017] NSWSC 1008 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. During the hearing the accused served a tendency notice under s 97 of the Evidence Act 1995 (NSW). There was no issue about the late service of the notice. 2. The tendency the accused sought to prove was that Ms Locke had a tendency to threaten self harm or suicide in circumstances where she perceived a risk of not suitably obtaining methadone. 3. While there was no issue that the evidence the subject of the notice was relevant and admissible as context evidence, the Crown objected to its admission as evidence of the alleged tendency, even though it proposed to lead hearsay evidence about Ms Locke having had suicidal ideation in connection with alleged assaults by the accused, which I dealt with in R v Walker [2017] NSWSC 997. 4. It is also the Crown's case that the accused had a tendency to act violently towards Ms Locke: R v Walker (No 2) [2017] NSWSC 1008. 5. In issue was whether the tendency evidence which the accused sought to advance, had significant probative value, s 97 providing: "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. The accused's case was that the tendency evidence did have significant probative value, explaining as it could the evidence to be led by the Crown from Dr Yu, about Ms Locke's representations on occasions when she exhibited suicidal ideation on admission, dealt with in R v Walker at [81] - [97]. 2. The Crown's case was that it did not have significant probative value, because the evidence could not be looked at in isolation and that suicidal ideation in relation to methadone treatment, went hand in glove with suicidal ideation about methadone treatment. 3. In resolving what lies in issue, an assumption must be made that the evidence will be accepted by the jury: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [52]. In determining its probative value, the evidence must be considered together with other evidence to be adduced: Hughes v The Queen [2017] HCA 20 at [61]. The significance of its probative value 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. In the result, to be admissible as tendency evidence, it "must be influential in the context of fact-finding": IMM at [46]. 4. It was not in contention that the evidence was relevant to the question of whether it was the accused who had caused the injury which had resulted in Ms Locke's death. The evidence to be led from Dr Yu includes evidence of occasions when, on admission, Ms Locke had suicidal ideation and exhibited physical injuries which she told Dr Yu were the result of the accused's violence. 5. I was satisfied that the tendency evidence the accused sought to advance thus had significant probative value, providing as it did not only context, but potentially also quite a different explanation for Ms Locke's reported suicidal ideation, to that which she gave to Dr Yu. That being, a tendency to threaten self harm or suicide in circumstances where she perceived a risk of not suitably obtaining methadone. 6. So understood, while the tendencies which the parties respectively advance, if they existed, did not necessarily cancel each other out, the evidence as to the tendency which the accused sought to advance, was not only relevant to what has to be resolved about whether it was in fact the accused's act or acts which resulted in Ms Locke's fatal injury, rather than accident. That evidence also had significant probative value, given the significance or importance which the reasons for Ms Locke's suicidal ideation may have, in establishing those facts. ********** Amendments 21 August 2017 - Publication restriction lifted - trial concluded DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2017