R v Cahill (No. 2)

[2018] NSWSC 1531

Supreme Court

New South Wales

Medium Neutral Citation:	R v Cahill (No. 2) [2018] NSWSC 1531
Hearing dates:	8 October 2018
Date of orders:	11 October 2018
Decision date:	11 October 2018
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	Johnson J: 1. allows the Crown to adduce evidence for tendency purposes in accordance with the Crown’s Amended Tendency Notice; 2. allows the Crown to adduce evidence as relationship evidence in the form of evidence to be admitted for tendency purposes together with the additional evidence identified by the Crown; 3. rejects the defence application to rely upon evidence for tendency purposes in accordance with the defence Amended Tendency Notice; 4. will hear counsel on objections to specific parts of the evidence, in particular those parts of the evidence which involve statements made by Mr Walsh to other persons.
Catchwords:	CRIMINAL LAW - murder trial - Accused charged with murder of partner - Crown application to adduce tendency evidence and relationship evidence - defence application to adduce tendency evidence - trial issues include self-defence (and defence of another), extreme provocation and substantial impairment - Crown application to adduce relationship evidence allowed - Crown application to rely upon evidence concerning two incidents for tendency purposes allowed - defence application to rely on evidence for tendency purposes declined
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	BC v R [2015] NSWCCA 327 BJS v R (2013) 231 A Crim R 537; [2013] NSWCCA 123 DAO v R [2011] NSWCCA 63; 81 NSWLR 568 DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9 Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Norman v R [2012] NSWCCA 230 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 R v Merrick (No. 2) [2016] NSWSC 164 R v Toki (No. 3) (2000) 116 A Crim R 536 R v Watkins (2005) 153 A Crim R 434; [2005] NSWCCA 164 The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) Cathrina Ann Cahill (Accused)
Representation:	Counsel: Ms N Williams (Crown) Mr J Trevallion (Accused)   Solicitors: Director of Public Prosecutions (Crown) Sarkis & Co (Accused)
File Number(s):	2017/52106
Publication restriction:	On 23 October 2018, the Accused pleaded guilty on an indictment charging manslaughter which the Crown proceeded with in place of the charge of murder. On 12 December 2018, the Offender was sentenced for manslaughter: R v Cahill (No. 4) [2018] NSWSC 1896.

Judgment

1. JOHNSON J: The Accused, Cathrina Ann Cahill, stands charged that between 17 and 18 February 2017 at Padstow in the State of New South Wales she did murder David Walsh. The trial of the Accused is to commence on 22 October 2018.

Pretrial Applications

2. In advance of the trial, a number of applications have been made on behalf of the Crown and the Accused:

1. an application by the Crown that certain evidence be admitted for tendency purposes in accordance with the Crown’s Amended Tendency Notice dated 19 September 2018;

2. an application by the Crown that the evidence relied upon for tendency purposes, together with certain other evidence, be admitted as relationship evidence;

3. an application by the Accused that certain evidence be admitted for tendency purposes in accordance with the defence Amended Tendency Notice dated 4 October 2018.

3. The hearing of the pretrial applications proceeded on 8 October 2018. A range of documentary material was tendered by the Crown (Exhibit A) and the Accused (Exhibits 1-5) with respect to the applications. Written submissions were made by the Crown and the Accused concerning these applications, with counsel making additional oral submissions at the hearing on 8 October 2018.

The Crown Case Against the Accused

4. The following is drawn from the Crown Case Statement (Exhibit A, Tab 1).

5. As at 17 February 2017, the Accused was 25 years of age and Mr Walsh was 29 years of age. Both were Irish nationals residing in Australia on working holiday visas. Mr Walsh had come to Australia in 2012 and the Accused in 2014.

6. The Accused and Mr Walsh knew of each other from Ireland, but met in Australia at a hotel in Bondi Junction. They commenced an intimate relationship in late 2014 and became engaged to be married on New Year’s Eve in 2016.

7. As will be seen, the relationship between the Accused and Mr Walsh between 2014 and 2017 may be described fairly as a volatile one, marked by incidents of violence on both sides of the relationship.

8. The Accused was living in Randwick when she started the relationship with Mr Walsh. She returned to Ireland over Christmas 2014 and Mr Walsh moved into her room. When she returned to Australia they moved into an apartment at Dalmeny Avenue, Rosebery.

9. Isobel Jennings and her boyfriend, Jonah Summers, met the Accused and Mr Walsh around July 2015 when they responded to an advertisement on “Gumtree” and moved into the Rosebery address with them.

10. In September 2015, the Accused and Mr Walsh moved into a four-bedroom house in Blaxland Street, Matraville. Ms Jennings and Mr Summers moved with them. The Accused and Mr Walsh shared one bedroom and other people including Amy O’Shaughnessy, Orla McCabe, Kerry Swan, Niall McKendry, Grace Keegan and Zoe O’Dwyer Kelly also resided there at various times.

11. As at 17 February 2017, the Accused and Mr Walsh were living together with other Irish nationals, Melissa Sinnott and Grace Keegan, at 85 Watson Road, Padstow. Ms Sinnott and Ms Keegan had each known the Accused for a number of years and were good friends with her. On 30 January 2017, the Accused, Mr Walsh, Ms Keegan and Ms Sinnott entered into a residential tenancy agreement for the premises at 85 Watson Road, Padstow and they moved into those premises around that time.

12. The Crown written submissions on the tendency application (Exhibit A, Tab 3) contain a summary of the events alleged to have occurred on 17 and 18 February 2017 giving rise to the charge of murder. This part of the Crown submission (paragraphs 12-31) was distilled from the Crown Case Statement and it will suffice for present purposes:

“12.    The accused is alleged to have murdered the deceased after he engaged in a physical altercation with Mathew Hyde just before midnight on 17 February 2017 at 85 Watson Road Padstow. The accused and the deceased had recently moved into those premises which they shared with Melissa Sinnott and Grace Keegan.

13.    The accused returned to the premises at 85 Watson Road, Padstow shortly before midnight. She was with Melissa Sinnott, Grace Keegan and Mathew Hyde whom they had just met at the Padstow Hotel where they had been drinking together.

14.    All four persons were moderately affected by alcohol. When they arrived home they noticed that the coloured glass panel in the front door was smashed. There was broken glass and blood on the tiles near the front door.

15.    The deceased had also just returned home after having been out drinking was affected by alcohol. Apparently he did not have keys to the premises and smashed the front door glass panel to let himself in.

16.    When the accused and her companions returned to the premises the deceased was asleep on a lounge in the family room which was towards the back of the house.

17.    Shortly after that the deceased woke up and without provocation started punching Mathew Hyde as he walked through the family room. Grace Keegan saw this and heard the deceased say 'who the fuck are you?' They fought for a short while in the family room. The deceased punched Matthew Hyde several times to the head. The fight continued into the kitchen area of the house with the deceased straddling Matthew Hyde on the kitchen floor and continuing to assault him. Grace Keegan yelled at them to stop and saw the accused trying to pull the deceased away.

18.    The deceased swung his arm which connected with the accused causing her to fall over. The deceased pushed the accused in the chest and she fell backwards onto the floor. The accused got back up and shouted something at the deceased. The accused 'boxed' the deceased in the face with a closed fist. The deceased pushed the accused again.

19.    When the accused got up, she was crying and initially holding her head.

20.    The accused then walked across the kitchen and stood beside Melissa Sinnott at the kitchen sink. Melissa Sinnott repeatedly told the accused to 'calm the fuck down'. The accused went to the kitchen drawer and took out a blue handled knife with a big blade.

21.    When Melissa Sinnott saw the accused get the knife she said 'Tina put the knife back'. Melissa Sinnott said this 'over and over again.' The accused replied 'No he needs to be taught a lesson, it's not fair, look at poor Mathew'.

22.    Melissa Sinnott saw the accused holding the knife in her hand by her side, standing over the deceased and Matthew Hyde when they were on the floor.

23.    The deceased stood up and released his grip on Matthew Hyde. Grace Keegan pushed the deceased up against the kitchen wall between the two bed heads which were propped against the wall.

24.    Grace Keegan managed to restrain the deceased pushing him against the wall as hard as she could. Keegan then saw the accused 'coming for him with a knife.' She described the knife as 'the biggest in the set', the 'biggest knife that we have' and 'really sharp'.

25.    Grace Keegan said that the accused was 'fixated on Davey' with the knife in her right hand at shoulder height with her arm folded back near her chest. The accused kept walking towards the deceased. The deceased did not move as he was restrained by Keegan.

26.    Grace Keegan continued to press the deceased against the wall. She tried to push the accused away from the deceased and shouted out 'Tina'. Grace Keegan said that she pushed the accused in the chest and struggled to keep the accused and the deceased apart.

27.    The accused moved towards the deceased and stabbed him using a fast forward movement in a slightly elevated way. The knife connected with the deceased in the left side of the neck with the blade penetrating 5-7cms leaving a 4cm cut along the deceased' s jaw line. The accused pulled the knife out of the deceased' s neck and dropped it. It fell onto the floor near the bed heads in the kitchen. The deceased started bleeding profusely.

28.    At some stage Ms Sinnott went upstairs to call the police. By the time she came back there was blood everywhere and the accused was repeatedly saying 'what have I done I'm so sorry.'

29.    The deceased went out to the front lawn where he collapsed and died despite the efforts of police and paramedics who attended.

30.    The accused was arrested and taken into custody.

31.    The accused participated in an ERISP the following morning in which she claimed to have no memory of the events surrounding the stabbing of the deceased.”

Issues in the Trial

13. There is no issue at the trial that the Accused stabbed Mr Walsh once to the neck in a manner which caused his death.

14. Mr Trevallion, counsel for the Accused, informed the Court that there were areas of controversy surrounding the narrative of events at the time of the stabbing. He submitted, in particular, that the statements of Ms Keegan and Mr Hyde indicated that Mr Walsh’s aggression was continuing at the time when Ms Keegan was attempting to restrain Mr Walsh (T42, 8 October 2018).

15. The Defence Response for the purpose of s.143 Criminal Procedure Act 1986 dated 2 September 2018 gave notice that the Accused would rely upon the following defences or partial defences at trial:

1. self-defence (including defence of another): s.418 Crimes Act 1900;

2. extreme provocation: s.23 Crimes Act 1900; and

3. substantial impairment of the mind: s.23A Crimes Act 1900.

16. The Court was informed that it was as a consequence of the issues raised in the Defence Response that the Crown now relies upon the Amended Tendency Notice dated 19 September 2018 (T35, 8 October 2018).

17. In support of the partial defence of substantial impairment, the defence has served upon the Crown a report of Dr Stephen Allnutt, psychiatrist, dated 11 December 2017. Put shortly, Dr Allnutt states that upon the basis of the Accused’s account of a history of abuse of her by Mr Walsh, she suffered from an underlying condition (post-traumatic stress disorder) which, putting aside intoxication, caused an abnormality of mind (an increased propensity to react aggressively) which would have undermined the capacity of the Accused to control her actions at the time of the killing. Dr Allnutt concluded his report in the following way:

“Whether she failed to understand events and judge right from wrong at the material time of the alleged offence is a difficult determination in this case, as the facts suggest there was a real threat to others (and potentially herself). Whether her response in the situation was a non-exaggerated appraisal of a real threat is a legal determination. Outside of perceived threat, it is unlikely that her PTSD would have compromised her capacity to understand events and judge right from wrong. Her PTSD would however, have made her vulnerable to misperceiving the level of threat when confronted with aggressive situations, particularly those involving the deceased (thus potentially misunderstanding events), and in that context, find justification in the moment for her actions (if there was an exaggerated misperception of the level of threat then she could be regarded as being compromised in judging right from wrong). While the issue understanding events, and judging right from wrong is less clear; I am more firmly of the view that on balance of probabilities, as a result of her ‘abnormality of mind’, arising from her ‘underlying condition’, she was substantially impaired in her capacity to control her action when confronted with the deceased's aggression towards Hyde, reacting with impulsive aggression to a perceived threat. In my view, she has available to her a defence of substantial impairment.”

18. In response to an enquiry by the Court, counsel for the Accused said that the conduct of Mr Walsh which constituted a serious indictable offence for the purpose of extreme provocation (s.23A(2)(b)) was the assault by Mr Walsh upon Mr Hyde although that aspect remained under consideration (T41-42, 8 October 2018).

Relevant Provisions of Evidence Act 1995

19. It is appropriate to set out relevant statutory provisions and principles before moving to the determination of the applications.

20. Several provisions of the Evidence Act 1995 have application to the present pretrial applications. Sections 55 and 56 Evidence Act 1995 state:

“55    Relevant evidence

(1)    The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2)    In particular, evidence is not taken to be irrelevant only because it relates only to:

(a)    the credibility of a witness, or

(b)    the admissibility of other evidence, or

(c)    a failure to adduce evidence.

56    Relevant evidence to be admissible

(1)    Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2)    Evidence that is not relevant in the proceeding is not admissible.”

21. Section 97 Evidence Act 1995 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.”

22. Section 101 of the Act states:

“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.”

23. Sections 135 and 137 Evidence At 1995 state:

“135    General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a)    be unfairly prejudicial to a party, or

(b)    be misleading or confusing, or

(c)    cause or result in undue waste of time.

…

137    Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

Principles to be Applied on Admissibility Issues

24. The tendering party bears the onus of establishing, on the balance of probabilities, any facts necessary for deciding that the evidence should be admitted: s.142 Evidence Act 1995.

Relevance

25. Consideration of relevance requires identification of the fact or facts in issue in the trial. Here, there is no dispute that the Accused stabbed Mr Walsh thereby causing his death. The principal issues in dispute concern the events occurring immediately before and at the time of the stabbing, the state of mind of the Accused at that time and the associated issues of self-defence, extreme provocation and substantial impairment.

26. The test of relevance is a relatively undemanding one. The enquiry for the purpose of s.55 concerns how the evidence might affect findings of fact. The possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at 313 [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at 312 [39].

27. Evidence which is relevant according to s.55 and admissible under s.56 is, by definition, probative. But neither s.55 nor s.56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some (even slight) probative value will be prima facie admissible: IMM v The Queen at 312 [40].

Section 137 Evidence Act 1995

28. Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at 306 [15]. Section 137 requires the “probative value” of the evidence to be weighed against the danger of unfair prejudice to the Accused. This requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue: IMM v The Queen at 314 [47].

29. The danger of “unfair prejudice” in s.137 Evidence Act 1995 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact (usually a jury) so that the jury may not comply with judicial directions as to its use: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at 325 [91]; R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 at 582-584 [163]-[165]; The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40 at 866-867 [73]. There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: BJS v R (2013) 231 A Crim R 537; [2013] NSWCCA 123 at 549-550 [51].

28. The existence of competing inferences (or alternative interpretations), available to be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s.137: R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 at 280 [196].

29. Rulings with respect to evidence tendered for non-tendency purposes will require application of these principles concerning relevance and s.137 of the Act.

Tendency Evidence - s.97 and s.101 Evidence Act 1995

32. Subject to some additional evidence tendered as relationship evidence, the Crown tenders the same body of evidence as tendency evidence and relationship evidence. If evidence is admissible for a non-tendency purpose, it cannot be used for tendency purposes unless the requirements of s.97 and s.101 are met: s.95 Evidence Act 1995.

33. No issue was raised in this case concerning compliance by the Crown or the Accused with the reasonable notice requirement. Accordingly, s.97(1)(a) need not be further addressed.

34. Tendency evidence is a species of circumstantial evidence: Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 at 277 [356]. Elsewhere in Elomar v R, it was said at 278 [359]:

“Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning.”

35. In Elomar v R, the Court of Criminal Appeal said at 260 [253]:

“Tendency evidence is evidence tendered to establish that a person has or had a tendency to act in a particular way or to have a particular state of mind. It is evidence that is tendered in order to provide the foundation for an inference that, because the person has or had that tendency, it is more likely that he or she behaved in a particular way, or had a particular state of mind at a time or in circumstances relevant to the issues in the dispute: see Gardiner v The Queen [2006] NSWCCA 190; 162 A Crim R 233 at [124].”

36. The Court of Criminal Appeal continued in Elomar v R at 278 [360]:

“The process of reasoning is:

•   on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way;

•   it can therefore be concluded or inferred that the person had a tendency to act in that way;

•   by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency.

Alternatively:

•   on an occasion or occasions other than on an occasion in question in the proceedings, a person had a particular state of mind;

•   it can therefore be concluded or inferred that the person had a tendency to have that state of mind;

•   by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person's state of mind conformed with that tendency.

Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion.”

37. “Significant probative value” means the capacity rationally to affect the assessment of the probability of the existence of a fact in issue to a significant extent: Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20 at 61 [16]. The evidence must be influential in the context of fact finding: IMM v The Queen at 314 [46].

38. It is not necessary that tendency evidence bear a "striking similarity" or "underlying unity" with facts in issue in order to have significant probative value. The requisite degree of similarity between the tendency and charged conduct will depend upon the circumstances of the case: Hughes v The Queen at 65-66 [39]-[40].

39. The majority (Kiefel CJ, Bell, Keane and Edelman JJ) in Hughes v The Queen observed at 66 [41]):

"The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is to the extent to which the tendency makes more likely the facts making up the charged offence . . . there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged."

40. In considering the probative value of evidence under s.97(1)(b), an assumption of the jury’s acceptance of the evidence must be made. No question of the credibility or reliability of the evidence can arise: IMM v The Queen at 315 [52]; The Queen v Bauer at 865 [69].

41. As the terms of s.97(1)(b) make clear, an assessment of whether the evidence has “significant probative value” is not confined to the evidence itself, but is to be made having regard to all the evidence sought to be adduced by the tendering party (the Crown): BC v R [2015] NSWCCA 327 at [82]-[83]. What must be assessed is the role that the evidence, if accepted, would play in the resolution of the disputed fact - its capacity to contribute to that resolution: DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9 at 774 [72]; BC v R at [83].

42. In IMM v The Queen, the High Court said at 313 [45]:

“The use of the term ‘probative value’ and the word ‘extent’ in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence.”

43. Application of the “significant probative value” test calls for a focus on the fact in issue, the probability of the existence of which the evidence is said to cast light.

44. Generally, a court is not required to assess the risk of joint concoction as part of the test in s.97(1)(b). Provided the evidence is rationally capable of being accepted by the jury, the possibility of contamination, concoction or collusion should be assessed by the jury as part of its assessment of factors that may affect the credibility and reliability of the evidence: The Queen v Bauer at 865-866 [69]-[70].

45. There is no requirement under the Evidence Act 1995 that an accused person’s tendency must be proved beyond reasonable doubt: The Queen v Bauer at 869 [86].

46. The second step, being a s.101(2) assessment, calls for consideration of probative value and prejudicial effect to determine whether the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the Accused.

47. In DAO v R [2011] 81 NSWLR 568; [2011] NSWCCA 63 at 597 [150], Simpson J observed that the term “prejudicial effect” in s.101(2) is a reference to evidence being used against an accused person for a purpose other than that for which it is admitted.

48. In relation to the test in s.101(2) Evidence Act 1995, the Court noted in Hughes v The Queen at 61 [17]:

"In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.”

49. Despite textual differences between the expressions “prejudicial effect” in s.101, “unfairly prejudicial” in s.135 and “unfair prejudice” in s.137, each conveys essentially the same idea of harm to the interests of the accused person by reason of a risk that the jury will use the evidence improperly in some unfair way: The Queen v Bauer at 866-867 [73].

50. When considering s.101(2), it is appropriate to take into account the “ameliorating effect" of any directions: DAO v R at [172].

51. Evidence may be relevant to the state of mind of an accused person, but not as tendency evidence. In Elomar v R, the Court of Criminal Appeal said at 280 [369]:

“If it could reasonably be inferred from the evidence of his attendance at the camp, and the nature of the camp, that he had a state of mind that favoured militant Islamic Jihad, it may equally be reasonably inferred that he continued to have that state of mind up to and beyond 2004. That is not tendency evidence and does not give rise to tendency reasoning.”

Relationship Evidence

52. Simply because evidence concerns the relationship between the Accused and Mr Walsh does not mean that it is necessarily admissible. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context: Norman v R [2012] NSWCCA 230 at [33].

53. In R v Clark, Heydon JA (at 553-556 [87]-[109]) considered the admissibility of relationship evidence in a criminal trial. Heydon JA referred at 562-563 [101] to the judgment of Howie J in R v Toki (No. 3) (2000) 116 A Crim R 536; [2000] NSWSC 999 as a decision where his Honour had “usefully surveyed” the authorities in this area. Howie J said at 540-541 [23]-[30]:

“23 Where the accused and another person have been living together over a lengthy period of time before the occurrence of the acts which give rise to the charge before the court, the relationship between the parties will be admissible if it is relevant to the facts in issue in the trial; Harriman v The Queen (1989) 167 CLR 590 at 630. This was so under the common law; Wilson v The Queen (1970) 123 CLR 334; S v The Queen (1989) 186 CLR 266; R v Frawley (1993) 69 A Crim R 208. It remains so under the provisions of the Evidence Act 1995: R v Serratorre (1999) 48 NSWLR 101; Conway v R (2000) 172 ALR 185. The rules that govern the admission of the evidence will depend upon the purpose for which the evidence is to be admitted.

24 Evidence of the relationship between the accused and another person can be admissible in order to put the facts giving rise to the charge into a proper context so that the jury can understand the acts of the accused relied upon by the Crown against the background of the circumstances that existed at the relevant time: Wilson v The Queen at 399, 344. The evidence is admitted not simply because it describes the relationship of the parties, but because statements or acts of the parties occurring within the relationship are relevant to the issues before the jury.

25 When used in this way, relationship evidence is not being adduced or admitted to prove any propensity that the accused may have had to act in a particular way. Its admissibility is, therefore, not subject to the limitations imposed on propensity evidence by the Evidence Act or the common law: Conway at [101]. In particular, the decision of the High Court in Pfennig v The Queen (1995) 182 CLR 461 does not apply and the evidence does not have to pass the test for the admissibility of propensity evidence laid down in that case: R v Ritter (unreported, CCA(NSW), 31 August 1995) at 7; Anderson (2000) 111 A Crim R 19 at 34; Conway at [102].

26    The admissibility of the evidence is, however, subject to the general provisions found in ss 135 and 137 of the Evidence Act. In criminal proceedings, if the unfair prejudice arising from the admission of the evidence would outweigh its probative value, it must be rejected: R v Blick [2000] NSWCCA 61 at [20].

27    The potentiality for prejudice inherent in such evidence may be minimised by limiting the use that is to be made of the evidence by the jury under s 136 of the Act and by appropriate directions to the jury as to the relevance of the evidence and the manner in which it is to be used by them supported by warnings about the misuse of the evidence: Locke (1997) 91 A Crim R 356 at 365.

28 Relationship evidence has traditionally been admitted as relevant to the state of mind of the offender including the intention of the accused at the time of the commission of the act causing death, the existence of a motive to kill the deceased, and whether the accused may have been acting under self defence or provocation: R v Vollmer [1996] 1 VR 95; Anderson at 31. But this type of evidence is also admissible to prove the identity of the offender: R v Serratore at [23], R v Hissey (1973) 6 SASR 280 at 288-289, and whether the act causing death was a result of an accident or misadventure: Wilson v The Queen, above.

29    The relationship between the accused and the other person can be proved in a number of ways. It can be shown by statements and acts of the accused, by direct evidence of other witnesses and by circumstantial evidence. It can also be proved by statements made by the other person where that person’s opinion of the relationship is relevant and the statements are otherwise admissible: R v Matthews (1990) 58 SASR 19; Frawley (1990) 69 A Crim R 208; R v Serratore, above at 107-108.

30 Where the relationship between the accused and the other person includes the infliction of injuries upon the other person by the accused, this fact can be proved by direct evidence of witnesses or, where admissible, statements made by the other person. It can also be proved by circumstantial evidence which raises a presumptive inference that the accused was the author of the injuries: R v Hissey at 289; Shaw v The Queen (1952) 85 CLR 365 at 377.”

54. In R v Merrick (No. 2) [2016] NSWSC 164, Wilson J said at [97]:

“Evidence of a hostile or violent relationship between the protagonists has generally been held to be admissible, not to show that the accused person was of bad character, or had a violent nature (tendency evidence), but as part of the background of the relationship, and as showing the atmosphere in which the charged event occurred, an atmosphere which could render it less likely that the charged offence occurred in the way the accused person asserted it had: R v Clark [2001] NSWCCA 494 (2001) 123 A Crim R 506; R v Garner (1963) 81 WN (Pt 1) NSW 120.”

The Crown’s Amended Tendency Notice

55. The Crown’s Amended Tendency Notice dated 19 September 2018 (Exhibit A, Tab 2) identifies the relevant tendencies of the Accused in the following way:

1. to have a particular state of mind, in which she expressed either an intention to kill or to inflict grievous bodily harm upon Mr Walsh, with whom she was in an intimate domestic relationship; and

2. to act upon that intention by carrying out controlled acts of violence towards Mr Walsh as the aggressor (not in self-defence and not as a result of a loss of control).

56. The Crown tendency application relates to separate incidents on 3 October 2015 and 12 November 2015.

The Incident on 3 October 2015

57. The Crown Case Statement summarised the incident of 3 October 2015 in the following way (paragraphs 12-23):

“12.    On 7 March 2016 Ms Jennings told police about an incident between the accused and the deceased she had witnessed in early October 2015. This incident was not previously reported to police.

13.    At about midnight, Ms Jennings was upstairs in her room at Matraville with Mr Summers. She heard the accused and the deceased arguing in the adjoining bedroom. They were making comments about each other’s family. They both sounded distressed.

14.    Ms Jennings came out of her bedroom, opened their bedroom door and said to the accused ‘Tina will you come downstairs and have a cigarette?’ The accused responded ‘No darling I’m grand’.

15.    Ms Jennings went back to bed. The shouting between the deceased and the accused continued. The deceased said ‘Your dad steals from charities’. Ms Jennings heard the bedroom door open and someone run downstairs. She got out of bed again and saw the deceased sitting on the upstairs sofa about 3 metres away from her. He had his head in his hands and he appeared upset.

16.    Ms Jennings saw the accused walk up the stairs with her hands behind her back. Ms Jennings again asked the accused to come out for a cigarette and she said ‘No darling I’m grand’.

17.    The accused walked past Ms Jennings and went over to the deceased where she stood above him and paused. The accused appeared to punch the deceased to the back of the head but Ms Jennings realised the accused was not punching him but holding a knife and stabbing the deceased.

18.    The accused stabbed the back of the deceased’s head four times before she dropped the knife and walked away.

19.    The knife had a black handle and had the largest blade of all of the knives in the kitchen.

20.    The accused returned about 10 seconds later and said ‘What happened?’ The deceased was in shock and crying. His hands were shaking. He screamed at the accused, ‘Tina what the fuck, you fucking stabbed me (he was holding the knife and staring at it), you fucking stabbed me.’ The accused responded, ‘No I didn’t.’ The deceased was bleeding from the back of the head. He had one cut on the back of his neck and three cuts on the back of his head.

21.    The accused and the deceased continued to scream at each other The accused repeated she had not done anything wrong. She eventually went outside for a cigarette with Ms Jennings and another house member Kerry Swan and said ‘You just don’t say things about people’s families. I just wanted to kill him. I just wanted to kill him.’

22.    The deceased told Ms Jennings not to contact police because the accused had not meant to hurt him. Ms Jennings put frozen peas on the back of the deceased’s head and he slept downstairs and the accused slept in her room. Ms Jennings told police she thought the deceased may have gone to the hospital at some stage.

23.    The next evening the accused was cutting something using the same knife. Ms Jennings asked her ‘Do you want a glass of wine?’ and the accused responded ‘No thanks, I don’t want to stab anyone’.”

58. The Crown application to adduce tendency evidence concerning the 3 October 2015 incident foreshadowed evidence to be given by Isobel Jennings and Jonah Summers.

The Incident on 12 November 2015

59. The Crown Case Statement summarised the incident on 12 November 2015 in the following way (paragraphs 24-43):

“24.    On the evening of 12 November 2015 the deceased went out to a local hotel. The accused went to find him. Before she could find him the deceased returned home and went to bed. The accused arrived home shortly after and they started arguing loudly in their bedroom.

25.    Ms Jennings was outside with Ms O’Shaughnessy having some drinks. The accused had been with them but she was not drinking.

26.    Between 10:00 and 11:00 pm Amy O’Shaughnessy heard some banging from inside the house. She heard the accused yell out ‘That’s my phone’. She heard the deceased and the accused talking loudly and more banging.

27.    Ms Jennings heard arguing and raised voices and the sound of something smashing. She got out of her bed and ran towards the accused and the deceased’s bedroom. She went to open the door but the deceased suddenly opened it. He was crying and his forehead was bleeding profusely. There was a big flap of skin hanging open from his forehead.

28.    Jonah Summers heard yelling coming from just outside his bedroom. He went into the hallway and saw the deceased holding a towel to his head with a heavy flow of blood coming from his head and on the carpet.

29.    The accused then appeared at the bedroom door and said, ‘What happened?’ The deceased replied, ‘You glassed me you bitch.’ The accused responded, ‘No I didn’t.’ The accused then became hysterical and started crying. Everyone came from their rooms. The deceased was pacing back and forth and trying to stop the blood. He was crying and sobbing.

30.    Mr Summers and the others stayed with the deceased for about 45 minutes. He tried to convince the deceased to go to hospital. The towel was pressed to the deceased’s head the entire time with the heavy flow of blood continuing. At some point the deceased moved the towel and Mr Summers observed blood squirting from his head out to about 15 centimetres.

31.    Everyone was telling the accused and deceased that they needed to call an ambulance. The deceased did not want the police called. Eventually the accused and the deceased went to the hospital. As the deceased’s condition deteriorated the accused pulled over and called an ambulance who came to the roadside.

32.    Police also attended and spoke to the accused and the deceased on the roadside. The accused told police that when the deceased came home from the pub he already had the injury.

33.    Ms Jennings received a phone call from the accused who said ‘The police are on the way to the house. I told the police that he got attacked walking home and just turned up bleeding, go upstairs and please clean the blood up and get rid of the glass.’

34.    Ms O’Shaughnessy received a call from the accused who said she was in the car outside. Ms O’Shaughnessy sat with the accused who was on the phone to someone else. She heard the accused say ‘David threw a candle at me and I threw it back’. She also heard her say something about David being mad.

35.    The accused told Ms O’Shaughnessy that the deceased had thrown the candle at her and it hit her on the shoulder. The accused then told her that she threw the candle at the deceased and the candle hit him in the face. Ms O’Shaughnessy could not recall the exact words she used. She told her that she did not mean to hit him in the face and that she ‘couldn’t do it anymore’.

36.    Ms Jennings walked upstairs to the bedroom of the accused and deceased. One of the glass candle holders that was usually on the window sill was missing. There was broken glass and blood on the deceased’s pillow.

37.    Police arrived and the house was declared a crime scene. Police located a large amount of blood and a candle encased in glass with the top of the glass broken.

38.    The next day Ms Jennings and Mr Summers visited the deceased in hospital. The deceased kept saying that the accused was crazy over and over. When Ms Jennings asked him what happened he said, ‘I was lying in bed and she walked over and glassed me because I threw her phone across the room.’

39.    Mr Summers observed either Ms Jennings or Ms O’Shaughnessy get a phone call from the accused. Once they were off the phone they said, ‘Tina said to get rid of the candle holder.’ Mr Summers told them not to do that as it was potentially tampering with evidence and they could get in trouble. Mr Summers did observe that at some time before the police arrived Ms O’Shaughnessy cleaned up some of the blood.

40.    The accused participated in an ERISP on 13 November 2015. The accused told police that she had argued with the deceased and the argument became heated. She said that the deceased was seated on the bed in their bedroom and as she walked towards the bathroom the deceased threw a large candle at her which hit her in the back. The accused said she picked up the candle and with her back turned threw it over her shoulder. The candle struck the deceased to the right side of his forehead causing three deep lacerations and rapid blood loss.

41.    The accused was charged with one count of malicious wounding as a result of the injury she inflicted on the deceased on 13 November 2015. She pleaded not guilty to this charge on 19 November 2015. The matter was adjourned on a number occasions. Eventually the accused was convicted in her absence on 26 April 2016. Later that day a section 4 annulment application was refused by the Court and the accused was sentenced to a two-year section 9 bond which included a condition that she complete domestic violence rehabilitation.

42.    Police took out an apprehended domestic violence order against the accused containing the mandatory conditions for the protection of the deceased as a result of this incident. On 26 April 2016 that order was made final for a period of 12 months.

43.    The deceased was also charged as a result of this incident with common assault (on the basis of the accused’s assertion that he first threw the candle at her) and contravene AVO (for returning to the residence under the influence of alcohol). On 4 July 2019 the deceased pleaded guilty to contravening the AVO and received a $300 fine. No evidence was offered on the common assault charge.”

60. The Crown application to adduce tendency evidence concerning the 12 November 2015 incident foreshadowed evidence to be given by Isobel Jennings, Jonah Summers, Amy O’Shaughnessy, Orla McCabe, Constable Sophie Power, Constable Rebecca Schofield, Constable Lauren Kelly, Joe Doran and parts of the ERISP with the Accused dated 13 November 2015, medical records concerning Mr Walsh’s injuries and a NSW Police Fact Sheet dated 13 November 2015.

Submissions of the Parties Concerning the Crown Tendency Application

61. With respect to the incident of 3 October 2015, the Crown pointed to the following features:

1. the Accused and Mr Walsh had both consumed alcohol before the argument;

2. the Accused and Mr Walsh had been arguing before the Accused stabbed him;

3. the Accused left the vicinity of Mr Walsh and went to the kitchen area where she located a large kitchen knife;

4. the Accused returned to where she had been arguing with Mr Walsh armed with a knife;

5. the Accused was spoken to by a housemate who tried to defuse the situation by advising her to “calm down” and to “chill”;

6. the Accused ignored the attempts by the housemate to defuse the situation;

7. the Accused stabbed Mr Walsh in the home they shared;

8. the Accused intended serious injury to the head and neck area of Mr Walsh with extensive blood loss by stabbing him four times with a large kitchen knife that she had obtained from the kitchen cutlery drawer;

9. after stabbing Mr Walsh, the Accused told her housemate, Isobel Jennings, that she wanted to kill Mr Walsh.

62. The Crown submitted that evidence of the incident on 3 October 2015 was compellingly similar to the charge that the Accused presently faces (for reasons set out at [61] above) and had significant probative value.

63. The Crown submitted that the proposed tendency evidence arising from the incident on 3 October 2015 showed that the Accused was not acting in self-defence at the time of that stabbing and that she left Mr Walsh (with whom she had been arguing) to retrieve a kitchen knife from the downstairs kitchen before returning voluntarily to the location where Mr Walsh was sitting holding his head crying.

64. The Crown submitted that the Accused concealed the knife behind her back with this giving rise to an inference that, now armed with the knife, she did not want either Mr Walsh or Ms Jennings to see it. The Crown asserted that this was indicative of the Accused acting clearly and being in control of her actions and aware of their wrongfulness.

65. The Crown submitted that the Accused chose the same weapon (a long-bladed kitchen knife) on 3 October 2015 and the night of the killing of Mr Walsh on 17-18 February 2017.

66. The Crown noted that the Accused was entreated to leave the scene by her housemate and cautioned to desist from assaulting Mr Walsh on both occasions. However, it is said that the Accused ignored this advice and continued with her approach to Mr Walsh on both occasions. On 3 October 2015, Ms Jennings suggested to the Accused that they go outside to have a smoke and urged her to “chill”. On the night of the alleged murder in February 2017, both Ms Keegan and Ms Sinnott urged the Accused to stop what she was doing, but (it is alleged) the Accused ignored her friends’ entreaties.

67. The Crown submitted that, on both occasions, the Accused chose a vulnerable part of Mr Walsh’s anatomy (being the head and neck area) to inflict the injuries.

68. The Crown submitted that the events of 3 October 2015 indicate that the Accused was not acting in self-defence and was in control of her actions on that occasion. It was submitted that the tendency evidence concerning 3 October 2015 bore upon the facts in issue in the trial, particularly the significantly contested facts that the Accused was the aggressor who was in control of her actions and not acting in self-defence with respect to the charge of murder.

69. As to the incident on 12 November 2015, the Crown pointed to the following features:

1. the Accused and Mr Walsh had been arguing;

2. the Accused and Mr Walsh were in the house they shared;

3. the Accused used a glass candle holder to strike Mr Walsh to the head;

4. the Accused in striking Mr Walsh with the glass candle holder caused a serious head wound to his forehead;

5. this wound bled profusely, requiring hospitalisation of Mr Walsh and the insertion of multiple sutures.

70. With respect to the events on 12 November 2015, the Crown submitted that the proposed tendency evidence was compellingly similar to the murder charge brought against the Accused and had significant probative value.

71. The Crown submitted that the incident on 12 November 2015 was witnessed by Ms Jennings, Mr Summers, Amy O’Shaughnessy and Orla McCabe. In addition, it was submitted that the proposed tendency evidence includes evidence from New South Wales police officers who were called to investigate the matter and who were involved in charging the Accused with inflicting grievous bodily harm on Mr Walsh. The proposed tendency evidence includes the ERISP in which the Accused participated with police concerning the 12 November 2015 incident.

72. Of the five features referred to earlier (at [69]), the Crown submitted that four out of five of those circumstances were replicated almost identically in the events surrounding the murder charge in February 2017. Save for the choice of weapons, the Crown submitted that the circumstances were almost identical.

73. The Crown submitted that the tendency evidence with respect to 12 November 2015 bears upon the facts in issue in the trial, particularly the significantly contested facts that the Accused was the aggressor, that she was in control of her actions and not acting in self-defence with respect to the murder.

74. The Crown submitted that the risk of contamination or joint concoction in this matter is very slim and almost negligible, especially as far as the evidence of the eye witnesses is concerned. It was submitted that each witness made their initial police statements very proximate in time to the incident of 12 November 2015 with Ms McCabe and Ms O’Shaugnessy not being witnesses to the 3 October 2015 event.

75. The Crown submitted that the probative value of the proposed tendency evidence substantially outweighs any prejudicial effect it may have on the Accused. It was submitted that the evidence is compelling in its capacity to support the account of the witnesses with respect to the events surrounding the charge of murder in February 2017, in particular to the issues of self-defence and loss of control.

76. The Crown submitted that the risk that the jury would misuse the evidence in a way logically unconnected with the purpose of its tender is small. It was noted in this respect that the Accused had been convicted of an offence arising from the 12 November 2015 incident.

77. The Crown submitted that the proposed tendency evidence ought be admitted in relation to the charge of murder for which the Accused is to stand trial.

78. Mr Trevallion, noted that much of the evidence which the Crown seeks to rely upon for tendency purposes will be admissible in the trial for other purposes, but he submits that parts of the evidence ought not be admitted at all and that the Crown should not be entitled to rely upon any of this material for tendency purposes.

79. It was submitted for the Accused that the proposed tendency evidence did not have significant probative value (s.97(1)(b) Evidence Act 1995) and, in any event, ought not be admitted on the basis that the probative value of the evidence did not substantially outweigh any prejudicial effect it may have on the Accused (s.101(2) Evidence Act 1995).

80. Mr Trevallion submitted that the alleged tendencies were expressed by the Crown in very general terms in a manner which undermined a conclusion that the evidence had significant probative value.

81. Counsel for the Accused submitted that there was a lack of contemporaneity between the incidents relied upon by the Crown for tendency purposes and the incident in which Mr Walsh died. He pointed to the passage of time of 14 to 16 months between the events in October and November 2015 and the killing of Mr Walsh in February 2017. In circumstances where, despite the problems in October and November 2015, the Accused and Mr Walsh became engaged to marry in December 2016, it was submitted that evidence concerning the earlier events could not satisfy the demanding test for admissibility for tendency purposes with respect to the Accused’s state of mind.

82. With respect to the evidence of the Accused saying on an earlier occasion that she wished to kill Mr Walsh, it was submitted that this was the type of statement which might be made idly in the course of a tense domestic relationship without an intent to so act so that this evidence lacked substantive probative value.

83. Further, by reference to s.101(2) and relying upon R v Watkins (2005) 153 A Crim R 434; [2005] NSWCCA 164 at 443-44 [49]-[51], Mr Trevallion submitted that evidence concerning the Accused’s stabbing of Mr Walsh with a knife in October 2015, and committing an offence against him in November 2015 for which the Accused was convicted, would give rise to the significant risk that the jury would be diverted from a proper consideration of the evidence of events on 17-18 February 2017 at the trial by giving undue weight to these earlier features, one of which had given rise to a criminal conviction.

84. Whilst acknowledging that a great deal of the evidence concerning the relationship between the Accused and Mr Walsh would come before the jury as relationship evidence and also because of the Accused’s reliance upon the partial defences of substantial impairment and extreme provocation, it was submitted that proposed tendency evidence ought not be admitted.

Defence Tendency Application

85. The Amended Tendency Notice dated 4 October 2018 relied upon by the Accused asserts that Mr Walsh had a tendency:

1. to act aggressively and to violently and belligerently assault people, either gratuitously or out of jealousy, whilst under the influence of alcohol;

2. to engage in violent and belligerent acts towards the Accused and males in her company or vicinity; and

3. to behave violently towards women with whom he was in a domestic relationship.

86. Mr Trevallion submitted that the facts in issue that the tendency sought to be proved is relevant is whether it is reasonably possible:

1. that the Accused was acting in self-defence when she struck Mr Walsh with the knife; and

2. that Mr Walsh engaged in conduct to control and demean the accused; and

3. that the acts of Mr Walsh that contributed to the mental condition of the Accused, in fact took place.

87. Much of the evidence upon which the Accused seeks to rely in this respect will, it was conceded by the Crown, be before the jury in any event as relationship evidence or as evidence relating to the facts in issue concerning events on 17-18 February 2017. Evidence in this category includes the statement of Richard Lindsay dated 16 March 2017, the statement of Matthew Hyde dated 18 February 2017, the statement of Isobel Jennings dated 17 March 2018, the ERISP of the Accused dated 18 February 2017, parts of the statement of Grace Keegan dated 18 February 2017, the statement of Melissa Sinnott dated 18 February 2017 and text messages and calls on the telephones of the Accused and Mr Walsh with respect to the evening of 17 February 2017.

88. In addition, the Crown accepted that evidence of events surrounding the issue of an apprehended domestic violence order on 14 September 2015 and the apprehended violence order dated 22 September 2016 would be in evidence before the jury.

89. However, the Crown opposes the defence application to rely upon any of this material for tendency purposes.

90. The Crown submitted that the suggested tendency evidence lacks significant probative value and did not relate to the facts in issue. It was part of the Crown case that Mr Walsh acted aggressively towards Mr Hyde on 17-18 February 2017 so that there was no controversy or dispute to which the suggested tendency evidence could attach.

91. In a separate category are the statements of Caroline O’Brien dated 13 March 2018 (Exhibit 4) and Kevin Killeen dated 1 October 2018 (Exhibit 5). These statements relate to the alleged tendency at [85](c) above.

92. Ms O’Brien was in a relationship with Mr Walsh for about 10 years in Ireland and they had three children together, the first child being born when they were both about 16 years old. The events referred to in her statement occurred up to the mid-2000s. Ms O’Brien states that her relationship with Mr Walsh was good at the start, but they commenced to argue and there were incidents of violence on his part. They separated and then got along better as a couple. No details of alleged abuse by Mr Walsh is contained in the statement.

93. Mr Killeen is the father of Niamh Killeen, who had been in a relationship with Mr Walsh for about two years before he left Ireland to come to Australia. Mr Killeen states that he was approached by members of the Garda (Irish Police) because of complaints by his daughter about Mr Walsh. Police wished Mr Killeen to use his influence to have Niamh end her relationship with Mr Walsh. Mr Killeen does not state that he observed any abusive conduct by Mr Walsh against his daughter.

94. The Crown submitted that the material from Ms O’Brien and Mr Killeen was remote in time from events relevant to the trial and that the material was expressed vaguely and (with respect to Mr Killeen’s statement) involved second or third-hand hearsay reports. The Crown submitted that the material lacked significant probative value.

The Crown’s Proposed Relationship Evidence

95. The Crown submitted that the evidence tendered for tendency purposes should be admitted, in any event, if the Court rejected the Crown tendency argument. In this way, the Crown presented the application to adduce relationship evidence as an alternative submission.

96. The Crown seeks to have admitted as relationship evidence the totality of the evidence sought to be tendered for tendency purposes together with certain additional evidence, being evidence of Isobel Jennings (concerning an incident in July 2015), Jonah Summers (concerning the July 2015 incident), Martin Doyle (concerning incidents on 1 January 2017 and late January 2017), Joe Doran (concerning an incident in October-November 2016) together with other parts of the Accused’s ERISP with police dated 13 November 2015.

97. The Crown submits that a full picture of the relationship between the Accused and Mr Walsh is appropriately to be placed before the jury, in particular given the foreshadowed reliance by the Accused upon self-defence (or defence of another), extreme provocation and substantial impairment.

98. The additional evidence upon which the Crown seeks to rely in this respect involves further incidents of conflict between the Accused and Mr Walsh at different times in 2015, 2016 and early 2017. Mr Trevallion does not object to the bulk of this evidence being admitted as relationship evidence in the trial with specific objections being taken to certain parts under s.135 or s.137 Evidence Act 1995.

Decision Concerning Relationship Evidence

99. Although the Crown tenders evidence as relationship evidence as a fall-back position to the tendency argument, I regard these issues as being cumulative rather than alternative aspects. A greater body of evidence is tendered by the Crown as relationship evidence than that relied upon for tendency purposes. If evidence is admitted for tendency purposes as well, that is an additional feature which attaches to those particular pieces of evidence. I will approach the tender of relationship evidence in this way.

100. I am well satisfied that the evidence tendered by the Crown should be admitted as relationship evidence based upon principles set out earlier in this judgment.

101. I note that there is no real controversy with respect to the application of those principles in this case with the defence accepting that this evidence ought be admitted for that purpose.

102. I am satisfied that the evidence to be relied upon as relationship evidence is relevant to issues in the trial and ought not be excluded under s.135 or s.137 Evidence Act 1995.

103. Specific objection has been taken by the Accused to particular parts of the evidence which includes statements made by Mr Walsh to other persons where the Crown seeks to rely upon that material as evidence of the truth of the facts. I propose to give the parties an opportunity to address on those specific areas after delivering this judgment.

Decision Concerning the Crown’s Tendency Application

104. As I have said, the great bulk of the evidence upon which the Crown seeks to rely for tendency purposes will be admitted in the trial in any event as relationship evidence. However, it remains necessary for the Court to make a ruling as to whether this evidence may be relied upon for tendency purposes as well: s.95 Evidence Act 1995.

105. In approaching the application of s.97 and s.101(2) to this case, it is necessary to keep in mind that there will be in evidence at the trial, for one reason or another, virtually the whole picture of the relationship (including acts of violence) between the Accused and Mr Walsh in the period from 2015 to 2017. Unless the whole history of the relationship is in evidence, it is difficult to see how the Accused would be able to rely upon the evidence of Dr Allnutt which asserts that (on the Accused’s account), Mr Walsh had abused her in the relationship over a considerable period of time so that she came to suffer from an underlying condition in the form of post-traumatic stress disorder so as to give rise to substantial impairment under s.23A Crimes Act 1900.

106. In relying upon acts of violence allegedly on the part of Mr Walsh towards the Accused over the history of the relationship, it must be relevant and probative for the Court to have as well evidence of acts of violence by the Accused towards Mr Walsh. Mr Trevallion accepted in submissions that it was appropriate that evidence of the relationship be placed before the jury “warts and all” (T48, 8 October 2018).

107. The two discrete incidents upon which the Crown seeks to rely in October and November 2015 each have significant features of similarity when it comes to the events on 17-18 February 2017 for which the Accused is to be tried. I accept the submissions of the Crown in this respect.

108. In my view, these matters have substantial probative value having regard to the issues in the trial of the Accused which have been communicated by her legal representatives.

109. The passage of time between October 2015 and February 2017 does not undermine the probative value of the evidence. Even though the Accused and Mr Walsh became engaged in December 2016, the evidence of events both before and after that date point to a consistently volatile relationship between them.

110. I do not accept the defence submission that the tendencies are expressed in terms which are too general to have significant probative value. The tendencies are sufficiently specific and relate directly to the two events on 3 October 2015 and 12 November 2015 upon which the Crown seeks to rely.

111. A difficulty with the defence submission that words used by the Accused may be seen as idle (and not genuine) threats to kill Mr Walsh, made in the course of a volatile domestic relationship, is that the Accused actually attacked Mr Walsh on these two occasions. On the Crown case, there were actions of the Accused which accompanied the words.

112. With respect to the defence argument based on R v Watkins and s.101(2), I am satisfied in the circumstances of this case that the probative value of these matters substantially outweighs any prejudice to the Accused. It will be necessary for attention to be given to the way in which this evidence will be adduced at the trial so that the issue does not become the subject of repetitive evidence. Appropriate directions may also be formulated to place this evidence in its proper context and to guard against the risk of unfair prejudice.

113. Having regard to the principles referred to above, I am well satisfied that the evidence meets the tests in s.97(1) and s.101(2) Evidence Act 1995. I propose to admit it as tendency evidence.

Decision Concerning the Defence Tendency Application

114. The great bulk of evidence to be adduced for the Accused with respect to violent acts committed by Mr Walsh in the context of his relationship with the Accused will be before the jury in any event as relationship evidence. Much of that evidence relates to the events on 17-18 February 2017, so that it bears upon the facts in issue and cannot sensibly be understood as tendency evidence.

115. With respect to the statements of Ms O’Brien and Mr Killeen, the events referred to there are significantly remote in time from those under consideration in the trial and do not involve the Accused.

116. Importantly, there is no detail of alleged conduct of Mr Walsh in Ms O’Brien’s statement. The probative value of the statement is minimal.

117. The statement of Mr Killeen is based on hearsay and contains no direct evidence of any conduct of Mr Walsh which has any probative value.

118. It is necessary for the Accused to satisfy the requirements of s.97 only, and not s.101(2). I am not persuaded that this evidence has significant probative value in the context of this trial. In forming this view, I have had particular regard to the issues in the trial where there is no issue that the Accused stabbed Mr Walsh in the neck in a manner which led to his death. The issues in the trial concern self-defence (or defence of another), extreme provocation and substantial impairment. In my view, all of these issues involve directly the relationship between the Accused and Mr Walsh in the period when they were together in Australia after 2014.

119. I do not propose to allow the Accused to rely upon evidence for tendency purposes as contained in the defence Amended Tendency Notice.

Remaining Issues

120. Mr Trevallion objects to particular parts of evidence which will otherwise be before the jury, if the Crown application to adduce evidence for tendency purposes and as relationship evidence succeeds, as it has.

121. In particular, objection is taken to some statements allegedly made by Mr Walsh which are contained in statements of persons to whom Mr Walsh is said to have spoken. Mr Walsh, of course, is deceased.

122. The hearing on 8 October 2018 focussed on the broader questions of admissibility. Although there were brief passing submissions made concerning application of provisions of the Evidence Act 1995 to statements made by Mr Walsh to others, no detailed submissions were made which would permit informed rulings on these objections. The best way forward is to hear counsel on these particular objections in light of the more general rulings contained in this judgment.

Conclusion

123. In summary, for reasons contained in this judgment:

1. I allow the Crown to adduce evidence for tendency purposes in accordance with the Crown’s Amended Tendency Notice;

2. I allow the Crown to adduce evidence as relationship evidence in the form of evidence to be admitted for tendency purposes together with the additional evidence identified by the Crown;

3. I reject the defence application to rely upon evidence for tendency purposes in accordance with the defence Amended Tendency Notice;

4. I will hear counsel on objections to specific parts of the evidence, in particular those parts of the evidence which involve statements made by Mr Walsh to other persons.

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Decision last updated: 22 February 2019