R v Walmsley-Hume; R v Walmsley (No 2)

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.