R v Walmsley-Hume; R v Walmsley (No 2) - [2024] NSWSC 1691

Supreme Court

New South Wales

Medium Neutral Citation: R v Walmsley-Hume; R v Walmsley (No 2) [2024] NSWSC 1691
Hearing dates: 15 July 2024, Written submissions closed 22 July 2024
Date of orders: 16 July 2024 (s 137 ruling)
23 July 2024 (ERISP ruling)
Decision date: 23 July 2024
Jurisdiction: Common Law
Before: Wright J
Decision:
Ruling and order in relation to pars 13 and 14 of the statement of AA of 4 July 2024
The Court rules that:
(1) Under s 137 of the Evidence Act 1995 (NSW), evidence to the effect of pars 13 and 14 of the statement of AA of 4 July 2024 is admissible except for any reference to bikies and an outlaw motorcycle gang or any person’s membership of such a gang.
The Court orders that:
(2) The order made under the Court Suppression andNon-publication Orders Act 2010 (NSW) on 15 July 2024 is varied so that the order reads that there be no publication of the evidence contained in pars 13 and 14 of the statement of AA dated 4 July 2024 in so far as those paragraphs contain evidence referring to bikies or an outlaw motorcycle gang or any person’s membership of such a gang, or any information or submissions concerning that evidence until the conclusion of the trial in this matter or until further order of the Court. This order is to apply throughout the Commonwealth of Australia.
Ruling in relation to the admissibility of the ERISP given by Mr Walmsley-Hume on 7 April 2022
The Court rules that:
(1) The ERISP given by Mr Walmsley-Hume on 7 April 2022 is not inadmissible under s 138, or under s 135 or s 137 of the Evidence Act.

Catchwords:
CRIME – murder – whether intention to kill or cause grievous bodily harm – whether co-accused participant in a joint criminal enterprise
EVIDENCE – exclusion of evidence under s 137 of the Evidence Act 1995 (NSW) – whether probative value of the evidence is outweighed by danger of unfair prejudice – danger that jury may be clouded by an emotional response to the evidence – whether danger of unfair prejudice can be adequately mitigated by excluding evidence of connection with outlaw motorcycle gang – evidence in limited respects admissible
EVIDENCE – exclusion of evidence under s 138 of the Evidence Act1995 (NSW)– whether evidence obtained by impropriety – whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained by impropriety

Legislation Cited:
Court Suppression andNon-publication Orders Act 2010 (NSW), s 8(1)(a)
Evidence Act 1995 (NSW), ss 135, 137, 138, 142, 192A
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 122
Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases Cited:
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Kadir v The Queen; Grech v The Queen (2020) 267 CLR 109; [2020] HCA 1
R v Camilleri (2007) 68 NSWLR 720; [2007] NSWCCA 36
R v Hawkins [2023] NSWSC…

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 Walmsley-Hume; R v Walmsley (No 2)

Details

AGLC: R v Walmsley-Hume; R v Walmsley (No 2) [2024] NSWSC 1691
Case: [2024] NSWSC 1691
Decision Date: 23 July 2024

CaseChat Overview and Summary

The appellants, Walmsley-Hume and Walmsley, were convicted of murder in the Supreme Court of New South Wales and appealed to the Court of Criminal Appeal. The central issue in this appeal was whether there was sufficient evidence to support their convictions, particularly in relation to their intent to cause death or grievous bodily harm and their participation in a joint criminal enterprise. The appellants argued that the trial judge had misdirected himself in allowing certain evidence that was either unfairly prejudicial or obtained improperly.

The court examined the evidence excluded under s 137 and s 138 of the Evidence Act 1995 (NSW). Section 137 pertains to the probative value of evidence being outweighed by the danger of unfair prejudice, while s 138 deals with the admissibility of evidence obtained by impropriety. The court considered whether the probative value of the evidence was significantly outweighed by the danger of unfair prejudice, particularly if it might cloud the jury's judgment. It also assessed whether the evidence of the appellants' connections with an outlaw motorcycle gang could be excluded while still allowing some aspects of the evidence to be presented. In terms of s 138, the court weighed the desirability of admitting the evidence against the undesirability of admitting evidence obtained by impropriety.

The Court of Criminal Appeal concluded that while some evidence was indeed unfairly prejudicial, it was not so significant as to warrant the exclusion of all evidence related to the appellants' membership in an outlaw motorcycle gang. Some aspects of this evidence were deemed admissible, albeit in limited respects. Regarding evidence obtained by impropriety, the court determined that the desirability of admitting the evidence outweighed the undesirability of its origin, leading to its admission. Ultimately, the court upheld the convictions, finding that the evidence was sufficient to support the jury's verdicts. The appeal was dismissed.

Orders