R v Walker (No 2) - [2017] NSWSC 1008

Supreme Court

New South Wales

Case Name:	R v Walker (No 2)
Medium Neutral Citation:	[2017] NSWSC 1008
Hearing Date(s):	27 July 2017
Date of Orders:	31 July 2017
Decision Date:	31 July 2017
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Evidence admissible.
Catchwords:	EVIDENCE – tendency evidence – murder – death of domestic partner of accused – certain tendency evidence admissible – other evidence admissible as relationship evidence
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	BC v R [2015] NSWCCA 327 Hughes v The Queen [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Frawley (1993) 69 A Crim R 208 R v Walker [2017] NSWSC 997 R v SK; SK v R [2011] NSWCCA 292 Wilson v The Queen (1970) 123 CLR 334
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

As well as the hearsay notice which I dealt with in R v Walker [2017] NSWSC 997, the Crown has served a tendency notice under s 97 of the Evidence Act 1995 (NSW). The tendency which is sought to be proved is Mr Walker’s tendency to act violently toward Ms Locke, with whom he was in an intimate domestic relationship. The circumstances relied on are specified to be:
“●   The violence occurred in the home of Jamie Walker and the deceased.
●   The violence included kicking, punching and pushing the deceased.
●   The violence included throwing objects at the deceased.
●   The violence including pushing the deceased down the stairs.”
There is no issue that Mr Walker and Ms Locke were in an intimate domestic relationship. Expert evidence will be called about the injuries which Ms Locke suffered and their potential causes.
There will also be evidence that from the time that Mr Walker made the 000 call on 27 April 2015, he gave a number of differing accounts about how Ms Locke came to be injured as she was and denied to police that they had been arguing, before Ms Locke was injured.
Expert evidence about the possible causes of Ms Locke’s injuries, will not be consistent with Mr Walker’s accounts of how Ms Locke came to be injured and neighbours’ evidence will also contradict aspects of Mr Walker’s accounts. There will be evidence, for example, that Mr Walker and Ms Locke had been heard arguing and he had been observed pulling her to the ground.
There is no objection to most of the tendency evidence which the Crown proposes to rely on. The evidence to which objection is taken is that which Ms Large and Elisha Locke would give. There was no suggestion that their evidence would not be relevant to what is in issue, that is, that it could not “rationally affect (directly or indirectly) the assessment of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Walker (No 2)

Details

AGLC: R v Walker (No 2) [2017] NSWSC 1008
Case: [2017] NSWSC 1008
Decision Date: 31 July 2017

CaseChat Overview and Summary

In the matter of R v Walker (No 2), the court was tasked with determining the admissibility of certain evidence related to the death of Elisha Locke, the domestic partner of the accused, Mr Walker. The Crown sought to present evidence from Elisha Locke and Ms Large to establish that Mr Walker was responsible for the injuries suffered by Ms Locke on 27 April 2015. The central legal issue was whether the probative value of this evidence substantially outweighed any prejudicial effect it might have on Mr Walker, as required by Section 101 of the Evidence Act.

The court examined the evidence in light of Section 101, which mandates that tendency evidence adduced by the prosecution in a criminal proceeding must not be used unless its probative value substantially outweighs any prejudicial effect on the defendant. The court assessed the evidence in conjunction with other evidence, including relationship evidence from neighbours such as Mr Smith, who would testify to witnessing instances of violence between Mr Walker and Ms Locke. The court considered the totality of the evidence to determine its probative value. Despite objections to certain evidence, the court found that the tendency evidence from Elisha Locke and Ms Large, along with other witnesses, collectively had significant probative value in establishing Mr Walker's responsibility for Ms Locke's injuries.

Given the evidence's substantial probative value and its alignment with the requirements of Section 101, the court ruled that the disputed evidence was admissible. This decision was based on the cumulative strength of the evidence, which included observations of violent acts by Mr Walker towards Ms Locke over an extended period. The court determined that the probative value of the evidence substantially outweighed any prejudicial effect it might have on Mr Walker.

The final orders of the court allowed the Crown to present the contested evidence, acknowledging its relevance in proving the charges against Mr Walker. The court’s ruling emphasised the importance of considering the totality of evidence when assessing its admissibility under Section 101 of the Evidence Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 101 also arises for consideration. It provides:“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.” The Crown seeks to rely on the evidence of Elisha Locke and Ms Large to help prove, to the requisite standard, that Mr Walker was responsible for the injuries Ms Locke suffered on 27 April 2015. In issue is whether the evidence they would give has significant probative value and if it does, whether its probative value substantially outweighs any prejudicial effect it may have on Mr Walker. In resolving what is in issue, other evidence, including the tendency evidence to which objection was not pressed, must be taken into account. As discussed in Hughes v The Queen [2017] HCA 20 at [61], evidence relied on to support a tendency does not need to be considered "by itself". Other evidence to be adduced must thus be taken into account, in determining the probative value of the disputed evidence. Even if particular tendency evidence is weak by itself, it must be assessed together with the other evidence. In this case that includes, for example, the evidence which neighbours such as Mr Smith, would give. Mr Smith had been a neighbour for about six or seven years when Ms Locke died. He will give relationship evidence to which no objection was taken. The tendency evidence he would give, which is also not objected to, concerns:“10. Page 20 - observed Walker grab Locke, push Locke and punch on at least 6 occasions.11. 21 - Locke came to his front door. Observed red mark on her face. Locke said "He punched me and pushed me down the stairs."22 - about 8 weeks ago, he heard screaming. Locke told him to call the police. He saw through the screen door Walker punch Locke in the face and body about 10 times. She then had a fit. During the assault she opened the door. Walker said "You want to call the police you are nothing but a fuckin' dog"”. It is not necessary to outline all of the tendency evidence other witnesses would give about Mr Walker’s violence towards Ms Locke. It should be noted, however, that it is only Elisha Locke who would give evidence of Mr Walker having acted violently towards Ms Locke prior to 2009, apart from Mr Walker’s mother, who would give evidence of having observed pushing. The tendency evidence Elisha Locke would give is:“1.6 - Walker became abusive around her first year of high school (1997). Threw things.7 - saw Walker punch Locke 8 to 10 times around head (1998). No marks but headache. Also saw him push and shove Locke.8 - Arguments increased by 2003 & heard Walker say degrading, nasty things to Locke during a visit.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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