R v Walmsley-Hume; R v Walmsley (No 1)

[2024] NSWSC 1690

Supreme Court

New South Wales

Medium Neutral Citation:

R v Walmsley-Hume; R v Walmsley (No 1) [2024] NSWSC 1690

Hearing dates:

15 July 2024

Date of orders:

16 July 2024

Decision date:

18 July 2024

Jurisdiction:

Common Law

Before:

Wright J

Decision:

Under s 53 of the Evidence Act 1995 (NSW), an inspection be held on 25 July 2024 of the roadway and surrounding area at and near the site where the deceased was hit on 24 February 2022 by a vehicle next to Old Southern Road South Nowra.

Catchwords:

CRIME – murder – whether intention to kill or cause grievous bodily harm – whether co-accused participant in a joint criminal enterprise

CRIMINAL PROCEDURE – trial – case management – whether inspection should be ordered

EVIDENCE – inspection under s 53 of the Evidence Act 1995 (NSW) – whether considerations in s 53(3) favour ordering an inspection – organisation and transport feasible – inspection ordered

Legislation Cited:

Evidence Act 1995 (NSW), s 53

Category:

Procedural rulings

Parties:

Rex (Crown)
Jayden Walmsley-Hume (JWH) (Accused)
Katie Walmsley (KW) (Accused)

Representation:

Counsel:
K Ratcliffe with J Diggins (Solicitor Advocate) (Crown)
S Hall SC (Accused JWH)
E Anderson (Accused KW)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Murphy’s Lawyers (Accused JWH)
Blaxland Law (Accused KW)

File Number(s):

202200100346 (JWH); 202200100355 (KW)

Judgment

1. The Court has before it an application by the Crown by notice of motion dated 12 July 2024 for an inspection under s 53 of the Evidence Act 1995 (NSW) of the roadway and surrounding area at and near the site where the deceased was hit on 24 February 2022 by the vehicle adjacent to Old Southern Road South Nowra.

2. The application was supported by the affidavit of Kathryn Malcolm of 10 July 2024. The reference to the date 21 January 2022 in par 3 of that affidavit appears to be a typographical error and should read 24 February 2022.

3. It can be noted that neither of the accused opposed the application.

Background and matters in issue

4. The background to this application as disclosed in the indictment and the Crown Case Statement is as follows. The accused, Mr Walmsley-Hume and Ms Walmsley, have both been charged with one count of murdering Taj Hart on 24 February 2022.

5. It is alleged that at about 2:55 pm on 24 February 2022 the deceased was walking north along the western side of Old Southern Road, South Nowra, about 7 metres from the roadway and Mr Walmsley-Hume was driving a white utility, with Ms Walmsley in the passenger seat, north along Old Southern Road. He drove off the roadway and collided with the deceased and then drove back onto, and continued along, the road. The deceased suffered fatal injuries as a result of the collision and died in an ambulance later that day at Shoalhaven District Memorial Hospital.

6. The Crown Case is that Mr Walmsley-Hume is guilty of murder on the basis that he deliberately drove at and struck the deceased with the intention of killing him or causing him grievous bodily harm.

7. It is contended that Ms Walmsley is guilty of murder on the basis that she was a party to a joint criminal enterprise either:

1. to intentionally cause grievous bodily harm to the deceased by striking him with a motor vehicle; or

2. to intimidate the deceased with the motor vehicle whilst agreeing to the possibility that the co-accused might intentionally cause grievous bodily harm to the deceased by striking him with the vehicle.

8. Alternatively, it was alleged that Ms Walmsley was guilty of murder on the basis of extended joint criminal enterprise in that she contemplated or foresaw the possibility that the co-accused might intentionally cause grievous bodily harm to the deceased by striking him with the vehicle and did not agree to it but continued to participate nonetheless.

9. Further, Ms Walmsley was charged in the alternative with being an accessory after the fact to murder as a result of her actions between 24 February and 7 April 2022 of assisting Mr Walmsley-Hume knowing that he had committed the murder of the deceased,

10. Both accused have pleaded not guilty to murder. Ms Walmsley has also pleaded not guilty to being an accessory after the fact to murder.

11. As I understand it, it is not in dispute that Mr Walmsley-Hume voluntarily drove the vehicle which collided with the deceased. The particular matter in issue in his case was whether the Crown could prove beyond reasonable doubt that he had the intention of killing or causing grievous bodily harm to the deceased.

12. In respect of Ms Walmsley, the matters in issue include whether:

1. she was a party to any Joint Criminal Enterprise as alleged by the Crown;

2. the Crown had proved beyond reasonable doubt that Mr Walmsley-Hume was guilty of murdering the deceased;

3. she knew that Mr Walmsley-Hume had murdered the deceased; and

4. she assisted Mr Walmsley-Hume between 24 February and 7 April 2022 as alleged.

Relevant circumstances

13. On 1 August 2022 a report by a crash investigator, SC Rugendyke, in relation to the events on Old Southern Road on 24 February 2022 was served. In that report SC Rugendyke expressed the opinion that the manner of driving by the driver of the vehicle on that occasion was the sole contributing factor to the collision.

14. On 23 August 2023, a report by a consulting engineer, Mr Johnston was served. In that report it was opined that the physical evidence demonstrated that there was no loss of control of the vehicle involved in the collision on 24 February 2022.

15. Ms Malcolm, a solicitor, was of the view that an inspection was essential for the jury to understand the scene, especially the sight lines, relevant spaces and the locations of various features in the area including the place where the deceased landed. I accept that an inspection of the site will assist the court in understanding the evidence of SC Rugendyke and Mr Johnston, as well as other lay evidence concerning the incident on 24 February 2022 and in resolving issues of fact in the trial.

16. In addition, it was noted in Ms Malcolm’s evidence that a shrine or memorial to the deceased in the general area of the proposed inspection would be covered so as not to draw attention to that feature during an inspection.

17. Otherwise, it was not in dispute that the place to be inspected had not materially altered from its appearance in early 2022.

18. I have been informed that arrangements can be made for an inspection on Thursday, 25 July 2024 leaving the courthouse in which the trial is being conducted at approximately 10:00 am. The arrangements include transport for the Court and Court staff, the jury, legal representatives and other relevant persons to the proposed inspection site, which is approximately one hour’s journey from the courthouse. I also understand that the parties have been given a reasonable opportunity to be present but both accused have indicated that they do not wish to be present in person during the inspection. No party indicated that there would be any difficulty with their representatives’ participation in the inspection.

Application of s 53

19. Section 53 of the Evidence Act relevantly provides:

“53 Views

(1) A judge may, on application, order that a[n] … inspection be held.

(2) A judge is not to make an order unless he or she is satisfied that—

(a) the parties will be given a reasonable opportunity to be present, and

(b) the judge and, if there is a jury, the jury will be present.

(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following—

(a) whether the parties will be present,

(b) whether the … inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence,

(c) the danger that the … inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time,

…

(e) in the case of an inspection—the extent to which the place or thing to be inspected has materially altered.

...”

20. Given the arrangements that can be made for 25 July 2024 and the attitudes of the parties, I am satisfied that the requirements of subs (2) have been satisfied.

21. Although the accused have decided not to take up the opportunity to be present at the inspection, their representatives will attend.

22. As noted above, in light of the factual issues in these proceedings, I am of the opinion that the inspection will assist the jury in resolving issues of fact and understanding the evidence.

23. No party has suggested that such an inspection might be unfairly prejudicial, might be misleading or confusing or might cause or might result in undue waste of time and Ms Malcolm, an experienced solicitor, was of the view that it would not be any of the above. The memorial or shrine in the location is to be appropriately covered before the jury arrives and during the inspection. I am satisfied that there is no significant danger of relevant prejudice, confusion or waste of time as a result of the inspection.

24. Finally, any changes since February 2022 to the area to be inspected are unlikely to be material.

25. In all the circumstances, I was of the view that an inspection is appropriate. Accordingly, on 17 July 2024, the Court ordered that:

1. Under s 53 of the Evidence Act 1995 (NSW), an inspection be held on 25 July 2024 of the roadway and surrounding area at and near the site where the deceased was hit on 24 February 2022 by a vehicle next to Old Southern Road South Nowra.

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Decision last updated: 21 August 2025