R v Walker (No 6) [2017] NSWSC 1029

Supreme Court New South Wales

Medium Neutral Citation: R v Walker (No 6) [2017] NSWSC 1029 Hearing dates: 4 August 2017 Date of orders: 04 August 2017 Decision date: 07 August 2017 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Further tendency evidence not admissible, but relationship evidence admissible. Catchwords: CRIMINAL LAW – evidence – tendency evidence Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Hughes v The Queen [2017] HCA 20 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. I dealt with the Crown's tendency notice in R v Walker (No 2) [2017] NSWSC 1008. Elisha Locke's evidence was dealt with at [13] - [39]. Before she was called, notice was given by the Crown that other another aspect of her evidence was sought to be relied on as evidence of the accused's tendency to act violently toward Ms Locke, with whom he was in an intimate domestic relationship. This was objected to and there were also objections to other parts of her evidence. 2. I concluded that the further part of Elisha Locke's evidence could not be led as tendency evidence, but that the other parts were relevant and admissible as relationship evidence. 3. I came to those conclusions for the following reasons. 4. There was no issue between the parties that evidence about the nature of the relationship between the accused and Ms Locke was relevant to the question of whether Ms Locke's fatal injury was more likely to have been caused by accident, or by a deliberate unlawful act of the accused. 5. The additional evidence sought to be led as tendency evidence, however, concerned events which Elisha Locke said had occurred when she was aged 14 and living with Ms Locke and the accused. He had become violent towards her, when she stuck up for her mother, when the accused and Ms Locke had been arguing. 6. That was not evidence which supported the existence of the alleged tendency, notwithstanding the Crown's case that it was powerful evidence of Elisha Locke, a defender of Ms Locke, then trying to stop that arguing. 7. In any event, it could not be concluded that this evidence had significant probative value, even when approached in the way discussed in R v Walker (No 2) at [10], namely, by considering it together with the other evidence to be adduced, as discussed Hughes v The Queen [2017] HCA 20 at [61]. That was because this evidence said nothing about the accused having a tendency to act violently towards Ms Locke. 8. I also concluded, however, that Elisha Locke's evidence that when she stayed with the accused and Ms Locke when she was aged 18, she witnessed arguments, but no physical abuse, was admissible as relationship evidence, because it put their relationship over time, into context. I came to a similar conclusion in relation to Elisha Locke's evidence that over time she observed Ms Locke's emotional state to alter; she became very depressed about the way Mr Walker treated her; and that while Elisha Locke had encouraged her mother to leave, Ms Locke never did. 9. The accused's case, that this aspect of Elisha Locke's evidence was not relevant could thus not be accepted, nor could the submission that Elisha Locke not being aware of Ms Locke's mental health problems, would make this evidence confusing, or potentially misleading. 10. There will be other evidence that Ms Locke did not leave the relationship, despite the accounts which she gave others about ongoing abuse, as well as false accounts that she had sought and obtained AVO's against Mr Walker. Elisha Locke's evidence establishes that Ms Locke did not do so, despite the encouragement of her daughter.