R v Edwards (No 2)

[2019] NSWSC 1820

Supreme Court

New South Wales

Medium Neutral Citation:	R v Edwards (No 2) [2019] NSWSC 1820
Hearing dates:	29 October 2019
Decision date:	29 October 2019
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Representations made by Ms Sharon Edwards in relation to specific topics are admissible
Catchwords:	EVIDENCE — admissibility – trial on charge of murder – representations made by deceased to friends in text and Facebook messages – representations made by deceased contained in witness statements – no issue that representations are admissible under first-hand hearsay exceptions – objection to representations not proximate in time on basis of relevance – objection to some witness statements on basis of relevance due to remoteness, lack of specificity, and reliability – discretion to admit representations in relation to specific topics
Legislation Cited:	Evidence Act 1995 (NSW), ss 65(2)(b), 66A
Cases Cited:	Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17
Category:	Procedural and other rulings
Parties:	Regina John Wallace Edwards
Representation:	Counsel: Ms K Ratcliffe (Crown) Mr P O’Connor (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) James Fuggle Rummery (Accused)
File Number(s):	2017/184174

Judgment

1. HIS HONOUR: The Crown case is that the accused is responsible for Ms Sharon Edwards, his wife, having gone "missing" on the night of the 14/15 March 2015. The Crown contends that the accused killed her. The accused does not concede that she is dead.

2. This judgment concerns an objection by counsel for the accused to the admissibility of various representations made by Ms Edwards on a variety of topics in a period spanning late 2013 until 14 March 2015.

3. The Crown seeks to adduce the evidence pursuant to either or both of ss 65(2)(b) and 66A of the Evidence Act 1995 (NSW). There is no issue about reasonable notice in writing having been given pursuant to s 67 of the Evidence Act. There is also no issue about the evidence falling within the description of evidence of prior representations being admissible pursuant to either, or both of, ss 65(2)(b) and s 66A. The objection is taken upon the basis of relevance (s 55); or alternatively, that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused (s 137).

4. The representations were made by Ms Edwards to other people in person or by way of messages (including by Facebook). The Crown asserts relevance on a number of topics:

Representations about how happy Ms Edwards was in her relationship with Billy Mills.

Representations about how she loved her new granddaughter.

Representations about her planned school reunion in July 2015, her future overseas holiday, and the wedding of one of her sons in Bali in July 2015.

5. The above representations are said to be relevant to proof that Ms Edwards is dead and has not just voluntarily disappeared.

6. Relevant to proof that the accused is responsible for Ms Edwards' death, that he killed her by a deliberate act and that he killed her with the necessary intention, are representations about the true state of the marriage between Ms Edwards and the accused, including his knowledge of the affair she was having with Billy Mills. The Crown submitted that such evidence is also relevant to the possible motive it will assert: namely both anger at Ms Edwards' affair with Mr Mills, with whom she had previously had an affair with in the early stages of their marriage; anger that Ms Edwards was proposing to bring Mr Mills home on the night of 14 March 2015 to a house the accused had bought; and the true context in which the accused travelled to the house on that night to await her return; and the extent of the argument and physical incident which then occurred between them. The Crown contends that without this evidence, the jury would be deciding the issues in a semi-vacuum: Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17, at 344 (Menzies J).

7. The Crown is on notice that the accused contends that he was not estranged from his wife and that the marriage continued, albeit imperfectly. This emerges from the s 143 Defence Response document, [1] and from a claim made by the accused in a police interview on 17 March 2015 that Ms Edwards "[put] a spanner in the works" about three weeks ago when she turned up at Lawrence (where the accused was living) and gave him a sloppy kiss and cuddle and said she did not really like Riverdale Court (where she was living in Grafton) and might move back to Lawrence. [2] The Crown contends it is entitled to meet that evidence with evidence to the contrary in the form of Ms Edwards' various representations to others.

   1. Criminal Procedure Act 1986 (NSW), s 143.

   2. Transcript of interview, 17 March 2015, at A. 321, 329-333.

8. For these reasons, the Crown wishes to adduce evidence of representations by Ms Edwards as to:

The poor relationship between her and the accused.

Her intention to separate from the accused by moving into the Riverdale Court property in Grafton.

How happy she was in her relationship with Billy Mills.

What she had told the accused about her relationship with Billy Mills.

9. Counsel for the accused accepts that representations that are proximate in time, namely on and from 1 March 2015, are relevant and there is no objection to them. In respect of all of the earlier representations it is contended that they are not relevant to the issues in the trial. They are not evidence that the accused was aware of the state of the marriage and of Ms Edwards' affair with Billy Mills prior to 1 March 2015.

10. It was submitted that unfair prejudice would arise because the jury may be misled into a view that the accused thought that his relationship was affected by the affair between his wife and Mr Mills, whereas there was confirmation in some of the material that he was not. As an example, in an exchange of messages with a friend on Facebook on 13 January 2015, the friend referred to Ms Edwards leading a "double life" in her marriage to the accused.

11. A further basis for objection was that counsel described some of the material as simply amounting to "chit chat", which was remote in time and not relevant. In particular, there was evidence in witness statements (i.e. as opposed to messages) that amounted to opinions derived from an amalgamation of conversations between the witness and Ms Edwards over a period of time. They were not accounts of particular representations that she had made and they were not reliable because of the lack of specificity as to time.

12. In response, the Crown submitted that there were in fact representations made by Ms Edwards prior to 1 March 2015 in which she was speaking of telling the accused things about their marriage and about Billy Mills.

13. The Crown case is that the breakdown of the marriage is evident in the representations from as early as 2014. For example, in the statement of Ms Christine Kennedy of 28 April 2015 at paragraph 11, there is an assertion that Ms Edwards spoke about the fact that she was living separately from her husband, and of her having told him that they could either split amicably or they could go through the courts, and that she told him that her preference was the former. It was said to be clear by referring to relevant events that this representation was made in early 2014.

14. The Crown submitted that in respect of any representations that preceded the accused's awareness of Ms Edwards' dissatisfaction with the marriage and her relationship with Mr Mills, they were otherwise relevant to show that her relationship with Mr Mills was not a fleeting one; that it had been going on for some time; she spoke of having a future with him; and that this was indicative of her having something to live for, making it therefore unlikely for her to have voluntarily disappeared.

15. There are some references in the various representations to the accused as being "erratic", "unstable" and the like; the Crown accepted these were inadmissible and would not be adduced.

Determination

16. Written submissions were received from both counsel when documentary material was provided on an informal basis prior to proceedings commencing on Monday 28 October 2019. (Copies of each have been placed on the court file and marked for identification VD1 and VD2.)

17. Oral submissions were made on 28 October 2019. However, at that stage, counsel were unable to identify which of the passages in the witness statements were objected to on the basis the witnesses' accounts were, as counsel for the accused contended, either summaries or opinions as to what Ms Edwards had said on multiple occasions over a period of time. As at the afternoon of 29 October 2019, counsel were still unable to identify the passages in dispute, or otherwise were unable to resolve such matters between themselves. For that reason, and with the prospect of the trial commencing the following morning with a jury, and with the Crown Prosecutor due to make her opening address, I have made a ruling summarising my conclusions, which are as follows.

18. I am satisfied that the representations (that is, those by way of message and those that appear in witness statements) that relate to the following subjects are admissible, no matter when they occurred in the period from late 2013 until 14 March 2015:

1.   The state of the marriage between the accused and Ms Edwards;

2.   Ms Edwards' attitude to the marriage;

3.   Ms Edwards' attitude to her relationship with the accused;

4.   Ms Edwards' attitude to her relationship with Billy Mills;

5.   Ms Edwards' involvement in current social activities and her anticipation of future events (e.g. holidays, school reunion); and

6.   The joy Ms Edwards' expressed in relation to her granddaughter, including babysitting her.

19. Items 1 to 3, and 4 to the extent either that Ms Edwards conveyed it to the accused, or that he had reason to suspect the relationship with Mr Mills, are probative of the Crown case that the accused killed his wife. The accused claims that he had no reason to have had knowledge of such matters until the beginning of March 2015. The Crown contests that claim. This is a dispute that will be well apparent to the jury and I see no appreciable unfair prejudice arising; certainly not to the extent that the probative value of the evidence is outweighed.

20. Items 4 to 6 are probative of the inference for which the Crown contends, namely that Ms Edwards has not simply "disappeared", but has been killed. The length of time over which the representations describe the rekindling of her relationship with Mr Mills and the strength that the relationship gained over the period from late-2013 until March 2015 is, along with the other matters, capable of demonstrating that she had everything to live for and is highly unlikely to have voluntarily "disappeared".

21. In relation to the objection to the "summary" or "opinion" of what might possibly be multiple representations made by Ms Edwards, where there is a risk that what appears in a witness' statement is not an account of specific representations made by Ms Edwards, but may be a summary or opinion of the witness derived from a number of representations, such evidence is clearly inadmissible. But where what is said in a witness' statement can, on its own, or by reference to other material, be identified as specific representations made by Ms Edwards at a particular time, or times, even if only tied to an approximate period of time, perhaps by reference to other evidence, such evidence would appear to be admissible for the reasons given above.

22. In relation to the latter, the parties are at liberty to raise any matter that they remain unable to agree upon.

Ruling

23. Subject to the reasons herein, the prior representations made by Ms Sharon Edwards in relation to specific topics are admissible.

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Endnotes

Decision last updated: 17 December 2019