Supreme Court New South Wales Medium Neutral Citation: R v Walker (No 7) [2017] NSWSC 1049 Hearing dates: 8 August 2017 Date of orders: 10 August 2017 Decision date: 10 August 2017 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Further hearsay evidence admissible. Catchwords: CRIMINAL LAW – evidence – hearsay evidence – evidence admissible – reasons for decision Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 R v Walker [2017] NSWSC 997 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. The Crown served a further hearsay notice in respect of the evidence of Dr Gao. The evidence identified was: STATEMENT DATE PARAGRAPH 6 – "I don't deserve it" and "Don't want to cause trouble" said by Linda Locke during discussion on 16/02/15 about taking out an AVO against her partner. Statement of Dr Pamela Gao 31.07.2015 7 – Linda talked about these injuries being the result of her violent, drug user partner & it wasn't the first time he had injured her. 10 – She has repeated low mood and SI (suicidal ideation) only when partner was intoxicated and kicked her and robed her money, otherwise, she's been fine." 11 – injuries to her chest were as a result of her partner "kicking" her. 1. I concluded that the evidence as to the representations at paragraph 6 were admissible under s 66A of the Evidence Act 1995 (NSW), for similar reasons to those explained in R v Walker [2017] NSWSC 997 at [81] – [89], in relation to the evidence of Dr Yu, who had also dealt with Ms Locke in 2015, when she was admitted. 2. The parties propose to put agreed facts before the jury, including by way of summary in relation to Ms Locke's complex medical history about which various evidence had already been received. As noted in R v Walker, it is common ground that medical records refer to complaints by Ms Locke that the accused had been violent towards her and that she had pursued and obtained AVO orders against him: Walker at [9]. But the parties have agreed, amongst other things, that neither police nor Ms Locke ever obtained an AVO against the accused; that other than as identified in the statement of Senior Constable Walsh, police have never discussed such an AVO with Ms Locke, the accused or his mother; and that the accused has never been charged with any domestic violence offence: at [10]. 3. The reliability of the representations which Ms Locke made will have to be assessed by the jury. 4. While the disputed representations fell within s 66A, concerning as they did Ms Locke's feelings, sensations, intentions and state of mind, it was submitted for the accused that they were not relevant, as even if they were accepted, they could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings: Evidence Act, s 55. 5. The accused also argued that if relevant, their receipt would result in unfair prejudice because there was no rational process of reasoning that the jury could use to take this evidence and reason towards a fact in issue. Further, that Ms Locke had made many representations to different people during her hospital stays in relation to her wishes or otherwise in relation to an AVO and that it would be misleading or unduly prejudicial to admit such evidence, to the exclusion of Ms Locke's contrary indications on many other occasions. 6. It was accepted that it could be logically reasoned that Ms Locke had a subjective fear in 2015 that she did not deserve an AVO and that was why she did not obtain one, so that her failure to do so should not be used as evidence in support of the proposition that the tendency acts on which the Crown relied, did not occur. Still, it was submitted, the disputed evidence was of insufficient probative value to warrant its admission, which was simply likely to invoke sympathy for the deceased. It was also submitted to be relevant that it would not be argued that the fact that Ms Locke had not taken out an AVO, could be taken into account in considering the credibility of the hearsay complaints that she made about domestic violence. 7. In resolving this issue it was necessary to take into account the evidence as to the nature of this relationship and the tendency evidence which the Crown relies on as to the accused's violence to Ms Locke. The disputed representations concerned her state of mind and intentions. They were made during an admission in the months prior to her death. 8. The representations, if accepted, explain why it was that despite complaint about domestic violence and representations about pursuit of an AVO, Ms Locke never sought such protection. They are relevant to the jury's consideration of the issue lying between the parties as to the reliability of other hearsay representations which have already been received, which are relied on to establish the tendency which the Crown contends that the accused had and ultimately, to the resolution of the issue as to whether the fatal injury which Ms Locke suffered was the result of the accused's deliberate act, or accident. 9. I was thus satisfied that these representations were admissible under s 66A and could not be excluded under either ss 135 or 137 of the Evidence Act. 10. While the representations were no doubt prejudicial, that their receipt was unfairly prejudicial, was not established: R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 at [164] – [165]. 11. The jury had already received evidence of Ms Locke's complex medical conditions, difficult personal circumstances and the problems which they caused her, as well as of acts of violence by the accused towards her. These disputed representations were neither misleading nor confusing, shedding light as they did on why Ms Locke had not pursued an AVO, which she had told others she had obtained. As discussed by Heydon JA (as his Honour then was) in R v Clark at [164], that Dr Gao was available to be cross examined as to the circumstances in which the representations were made, was a relevant consideration. 12. I was also satisfied that the probative value of the representations was not outweighed by the danger of unfair prejudice to Mr Walker. The balancing exercise required did not permit the conclusion that the disputed representations should not be admitted, given the parties' agreement that Ms Locke had made many untrue representations about other matters, which will be before the jury. It followed that the disputed representations, if not admitted, would result in the relationship and Ms Locke's conduct, state of mind and intentions not being put into proper context, so that the jury can consider, on the relevant evidence, whether her death was the result of accident, rather than a deliberate act. 13. Accordingly, the objection to the evidence could not be upheld. The other objections to Dr Gao's evidence were resolved by the parties. ********** 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