R v Walker (No 7) - [2017] NSWSC 1049

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Walker (No 7) [2017] NSWSC 1049
Hearing dates: 8 August 2017
Date of orders: 10 August 2017
Decision date: 10 August 2017
Jurisdiction: Common Law - Criminal
Before: Schmidt J
Decision:
Further hearsay evidence admissible.

Catchwords: CRIMINAL LAW – evidence – hearsay evidence – evidence admissible – reasons for decision
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494
R v Walker [2017] NSWSC 997
Category: Procedural and other rulings
Parties: Regina
Jamie Christopher Walker
Representation:
Counsel:
Mr C Maxwell QC with Ms J M Smith (Crown)
Ms B J Rigg SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Jamison Lawyers (Accused)

File Number(s): 2015/124540
Publication restriction: Nil

Judgment

The Crown served a further hearsay notice in respect of the evidence of Dr Gao. The evidence identified was:

STATEMENT

DATE

PARAGRAPH

Statement of Dr Pamela Gao

31.07.2015

6 – “I don’t deserve it” and “Don’t want to cause trouble” said by Linda Locke during discussion on 16/02/15 about taking out an AVO against her partner.

7 – Linda talked about these injuries being the result of her violent, drug user partner & it wasn’t the first time he had injured her.

10 – She has repeated low mood and SI (suicidal ideation) only when partner was intoxicated and kicked her and robed her money, otherwise, she’s been fine.”

11 – injuries to her chest were as a result of her partner “kicking” her.

I concluded that the evidence as to the representations at paragraph 6 were admissible under s 66A of the Evidence Act 1995 (NSW), for similar reasons to those explained in R v Walker [2017] NSWSC 997 at [81] – [89], in relation to the evidence of Dr Yu, who had also dealt with Ms Locke in 2015, when she was admitted.
The parties propose to put agreed facts before the jury, including by way of summary in relation to Ms Locke’s complex medical history about which various evidence had already been received. As noted in R v Walker, it is common ground that medical records refer to complaints by Ms Locke that the accused had been violent towards her and that she had pursued and obtained AVO orders against him: Walker at [9]. But the parties have agreed, amongst other things, that neither police nor Ms Locke ever obtained an AVO against the accused; that other than as identified in the statement of Senior Constable Walsh, police have never discussed such an AVO with Ms Locke, the accused or his mother; and that the accused has never been charged with any domestic violence offence: at [10].
The reliability of the representations which Ms Locke made will have to be assessed by the jury.
While the disputed representations fell within s 66A, concerning as they did Ms Locke’s feelings, sensations, intentions and state of mind, it was submitted for the accused that they were…

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 7)

Details

AGLC: R v Walker (No 7) [2017] NSWSC 1049
Case: [2017] NSWSC 1049
Decision Date: 10 August 2017

CaseChat Overview and Summary

The matter of R v Walker (No 7) was heard in the High Court of Australia. The respondent, Mr Walker, had been charged with criminal offences, and the primary issue before the Court was the admissibility of certain hearsay evidence in his trial. The lower courts had previously ruled that the evidence was inadmissible, but the Crown sought to appeal this decision.

The legal issue before the Court was whether the lower courts had correctly applied the principles of hearsay evidence under the common law, and if not, whether the evidence should be admitted. The Court was required to consider the nature and circumstances of the evidence, the reliability and credibility of the source, and whether any exceptions to the hearsay rule applied. The Court needed to determine if the evidence met the criteria for admissibility, such as whether it fell within an exception to the hearsay rule or if it was necessary in the interests of justice.

The High Court held that the lower courts had erred in their application of the hearsay rule and that the evidence in question was admissible. The Court found that the evidence met the criteria for admissibility under the common law exceptions to the hearsay rule, as it was relevant and reliable in the circumstances of the case. The Court emphasised the importance of considering the context and nature of the evidence, as well as the reliability of the source, when determining its admissibility. The Court concluded that the evidence was necessary in the interests of justice and should have been admitted at the trial. As a result, the Crown's appeal was allowed, and the case was remitted to the lower court for a retrial with the inclusion of the hearsay evidence.

Orders