R v Walmsley-Hume; R v Walmsley (No 5)

[2024] NSWSC 1694

Supreme Court

New South Wales

Medium Neutral Citation:

R v Walmsley-Hume; R v Walmsley (No 5) [2024] NSWSC 1694

Hearing dates:

24, 25 and 26 July 2024

Date of orders:

26 July 2024

Decision date:

28 July 2024

Jurisdiction:

Common Law

Before:

Wright J

Decision:

In relation to the objection to giving evidence taken by the witness, Mr Kristopher Hume, under s18 of the Evidence Act 1995 (NSW) the objection is not upheld and he is required to give evidence.

Catchwords:

EVIDENCE – s 18 of the Evidence Act 1995 (NSW) – murder charge – objection of the father of the accused to giving evidence – whether the nature and extent of that harm outweighed the desirability of having the evidence given – harm outweighed by desirability of having the evidence given – objection not upheld

CRIMINAL PROCEDURE – trial – case management – objection of the father of the accused to giving evidence – whether objection should be upheld under s 18 of the Evidence Act 1995 (NSW) – objection not upheld in the circumstances

Legislation Cited:

Evidence Act 1995 (NSW), ss 18, 65

Cases Cited:

LS v Director of Public Prosecutions (NSW) (2011) 81 NSWLR 551; [2011] NSWSC 1016

McNamara v the King (2023) 280 CLR 201; [2023] HCA 36R v A1 (No 2) [2019] NSWSC 663

R v Barakat; R v Younes (No 3) [2016] NSWSC 1256

R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592

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)

B Ford (Solicitor for the witness Mr Hume)

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. On 24 July 2024, Mr Kristopher Hume, the father of the accused, Mr Walmsley-Hume, was called to give evidence. His attention had been drawn to the provisions of s 18 of the Evidence Act 1995 (NSW) and he had received some advice in that regard. When asked whether he wished to take the objection, Mr Hume expressed some hesitation and, as a result, he was allowed a further opportunity to obtain advice from a solicitor in relation to that section. After receiving advice, he indicated that he objected to giving evidence. In order to allow his solicitor to review the substance of the proposed evidence and make submissions, the issue of the objection was stood over to the following afternoon, after the view which had been scheduled for the following morning.

2. On 25 July 2024, Mr Ford, solicitor, appeared for Mr Hume. Mr Hume gave evidence and Mr Ford made submissions. Further submissions were made on 26 July 2024.

Background and matters in issue

3. The background to these proceedings has been set out in earlier judgments and it is unnecessary to repeat it here. It is sufficient to note that in relation to the count of murdering Taj Hart on 24 February 2022 with which both accused were charged, the principal matter in issue in respect of Mr Walmsley-Hume was whether the Crown can prove beyond reasonable doubt that he had the intention of killing or causing grievous bodily harm to the deceased. It was not in dispute that he drove the white utility which hit the deceased near the dirt track approximately 7 m to the west of the roadway of Old Southern Road, South Nowra or that the deceased died as a result of being hit by the ute.

4. In respect of Ms Walmsley, the matters in issue in relation to the murder count included whether the Crown had proved beyond reasonable doubt she was a party to any Joint Criminal Enterprise to drive at the deceased with the intention of killing or causing him grievous bodily harm. In relation to the alternative charge of being an accessory after the fact to murder, Ms Walmsley’s issues included whether the Crown could prove that:

1. Mr Walmsley-Hume intended to kill or cause grievous bodily harm to the deceased and thus was guilty of murdering the deceased.

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

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

The evidence

5. The evidence included the transcript of the interview Mr Hume had given to police on 1 March 2022, from which the Crown identified the relevant portions relating to the following matters:

1. The events of 24 February 2022;

2. Calls and messages sent by Mr Walmsley-Hume to his father about hitting a kangaroo;

3. Both accused attending the home of Mr Scott Hume on 24 February 2022 with Mr Hume;

4. “Previous incidents” including the incident at 215 Old Southern Road on 7 January 2022;

5. What Mr Walmsley-Hume told Scott Hume about the driving incident;

6. Attendance at Scott Hume’s house on 24 February 2022;

7. Staying at Mr Walmsley-Hume’s and Ms Walmsley’s house and observations of the ute in the back yard; and

8. Ms Walmsley smoking cigarettes.

6. Mr Hume gave evidence of having diagnoses of anxiety, depression and post traumatic stress disorder and of the adverse effect on his mental health of giving evidence in these proceedings. This included, in particular, two recent attempts at suicide, as a result of which he was taken to hospital by police. The last of those incidents was said to have been caused by his being served with a subpoena to attend and give evidence in these proceedings. There was, however, no medical evidence led to support these contentions. Nor was there any documentation tendered in relation to any of these matters.

7. In addition, Mr Hume gave evidence of his family circumstances and the relationship with his son including that prior to the incident on 24 February 2024 he would usually see his son every day as they worked together but after he had spoken to the police he had had no contact with his son. Mr Hume said that he had attempted to contact his son while he was in custody but no contact had been made. Mr Hume felt that his giving evidence in this trial would be likely to make it more difficult for him to reconcile with his son. Submissions were also made on Mr Hume’s behalf that some of the evidence might involve disclosure of confidential communications between father and son.

8. On 26 July 2024, there were further submissions made by the parties. During submissions, additional relevant information came to light. It was expressly agreed that, on 28 October 2022, Mr Hume was sentenced for unrelated offending and as part of that sentence he received a 12.5% discount for future assistance and a 7.5% discount for past assistance which was related to his giving evidence in the present trial of Mr Walmsley-Hume and Ms Walmsley in light of the information he had provided in his earlier interview with police.

Relevant statutory provisions and principles

9. Section 18 of the Evidence Act relevantly provide:

“18 Compellability of spouses and others in criminal proceedings generally

(1) This section applies only in a criminal proceeding.

(2) A person who, when required to give evidence, is the … parent … of a defendant may object to being required—

(a) to give evidence, or

(b) to give evidence of a communication between the person and the defendant,

as a witness for the prosecution.

(3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.

(4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.

(5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.

(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that—

(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and

(b) the nature and extent of that harm outweighs the desirability of having the evidence given.

(7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following—

(a) the nature and gravity of the offence for which the defendant is being prosecuted,

(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it,

(c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor,

(d) the nature of the relationship between the defendant and the person,

(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.

(8) If an objection under this section has been determined, the prosecutor may not comment on—

(a) the objection, or

(b) the decision of the court in relation to the objection, or

(c) the failure of the person to give evidence."

10. Relevantly for present purposes, s 18 of the Evidence Act permits a parent to object to giving evidence as a witness for the prosecution in a criminal proceeding brought against the parent’s child.

11. It can be observed that the objection which may be taken under s 18(2)(a), which was the objection taken in the present case, is to “giv[ing] evidence … as a witness for the prosecution”. The terms of s 18(2)(a) do not limit the objection which may be to giving evidence against the child but extend it to giving any evidence at all as a witness for the prosecution, even if there are accused, in addition to the witness’s child, who are parties to the proceedings. This construction of s 18(2)(a) is not only consistent with the wording of the provision but is also consistent with the approach to joint criminal trials and the construction of the Evidence Act more generally taken by the High Court as recently explained in McNamara v the King (2023) 280 CLR 201; [2023] HCA 36; at [53] et seq and in particular [62] and [69] (Gageler CJ. Gleeson and Jagot JJ).

12. Where such an objection is taken, the Court is required to rule on it, applying the balancing test contained in s 18(6) and s 18(7) of the Evidence Act: LS v Director of Public Prosecutions (NSW) (2011) 81 NSWLR 551; [2011] NSWSC 1016 (LS) at [35]. In LS at [38] the second reading speech was referred to and it was noted that the Attorney General on that occasion said:

“The approach which was been adopted in the bill offers the best means of ensuring the achievement of the underlying policy objectives of protection of the family unit and the avoidance of undue hardship of the witness”.

13. In R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592 at [98], Bellew J identified that the policy considerations underpinning s 18 as explained in the Australian Law Reform Commission’s relevant report ([1985] ALRC 26 at [59]) were to the following effect:

1. the desirability, in the public interest, of having all relevant evidence available to the courts in criminal proceedings; and

2. the undesirability, in the public interest, that the procedures for enforcing the criminal law should be allowed to disrupt family relationships to a greater extent than the interests of the community really require or make unduly harsh demands by compelling persons, where the general interest does not require it, to give evidence that may, inter alia, bring punishment on those they love.

14. Under s 18(6), the parent must not be required to give evidence if two conditions are satisfied, namely:

1. there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person giving evidence or to their relationship with the child, if the parent gives evidence: s 18(6)(a); and

2. the nature and extent of that harm outweighs the desirability of having the evidence given: s 18(6)(b).

15. It is well established that s 18(6)(a) sets a relatively low threshold as to whether there is a likelihood that relevant harm would or might be caused: R v Barakat; R v Younes (No 3) [2016] NSWSC 1256 at [26] (N Adams J). It is not necessary that the Court find that harm would probably or necessarily be caused. Rather, it is sufficient that there is a likelihood that harm might be caused.

16. The statute does not define the word "harm" for the purpose of s.18(6). It appears, from the context in which the word is used, that it extends to harm to a relevant relationship and harm to the person, including psychological as well as physical harm: R v A1 (No 2) [2019] NSWSC 663 at [44] (Johnson J).

17. In the present case, notwithstanding the lack of medical or documentary evidence in support of Mr Hume’s evidence of his mental health diagnoses and recent episodes of being taken to hospital, given the low threshold, I am prepared to find that the requirement in s 18(6)(a) has been met.

18. Where s 18(6)(a) is satisfied, the Court must consider whether the nature and extent of that harm outweighs the desirability of having the evidence given. In this regard, the Court must have regard to the non-exhaustive list of mandatory considerations set out in s 18(7) of the Act, as well as any other relevant factors.

19. As to par (a) of s 18(7), the present case concerns most significantly a charge of murder which is of such a nature and gravity that this factor weighs in favour of the evidence being required to be given.

20. In relation to par (b), in my view, the substance of the evidence that Mr Hume may give has considerable importance in relation to the matters in issue identified above and in relation to an assessment of the credibility of Mr Walmsley-Hume, in particular, but also potentially of Ms Walmsley as well. Furthermore, it is likely that the jury could attach some significant weight to the evidence, given its consistency with other evidence, Mr Hume’s knowledge of the persons involved and the inherent credibility of the evidence. This factor also favours the evidence being required to be given.

21. For the purposes of par (c), apart from the recording of the interview with Mr Hume, there was not likely to be other evidence reasonably available to the prosecutor concerning the matters to which Mr Hume’s evidence relates. This is because that evidence largely relates to conversations and events occurring between Mr Hume and the two accused, although there are other persons who may be giving evidence who were also present from time to time. Taken as a whole, this consideration did not weigh heavily in one direction or another.

22. As to the nature of the relationship between Mr Hume and his son as referred to in par (d), it appears that, although his son only lived with Mr Hume for a short part of his son’s life, he did see him daily when they were working together. After the events of 24 February 2022 and before he was arrested, however, it appears that Mr Walmsley-Hume left where he was living and working and moved to various locations north of Sydney and had no relevant contact with his father. This has continued to be the case while he has been in custody since his arrest. Furthermore, while I accept that Mr Hume giving evidence may make reconciliation with his son more difficult, as Mr Hume said, it appears to me that the damage to the relationship was essentially caused by Mr Hume’s giving the interview to police in the first place. This factor (d) weighs in favour of Mr Hume not being required to give the evidence but, it is a far from overwhelming consideration in all the circumstances.

23. Apart from the fact that some of the messages and conversations about which Mr Hume would give evidence took place in a family context where Mr Walmsley-Hume and Ms Walmsley were seeking help from his father and some took place at Mr Hume’s home or his brother’s home, there did not appear to me to be any confidentiality attaching to the conversations which would be relevant for the purposes of par (e) of s 18(7).

24. Prior to receiving the information concerning the discount to Mr Hume’s sentence for his agreement or undertaking to give evidence in these proceedings, I tended to the view that the potential harm to Mr Hume because of his mental health conditions as a result of giving evidence in these proceedings may well have outweighed the desirability of having the evidence given, especially because the recording of the interview may have been admitted under s 65 of the Evidence Act.

25. In light of his agreement or undertaking to give evidence in these proceedings for which he received the discount of 12.5%, however, I was satisfied that Mr Hume had obtained that very significant benefit by voluntarily deciding to give evidence, notwithstanding the potential effect on his mental health and his relationship with his son. In my view, there were two relevant considerations flowing from this. First, there is a public interest in requiring Mr Hume to adhere to his agreement or undertaking previously given. Secondly, it was probable that Mr Hume’s risk of harm to his mental health and to his relationship with his son as a result of him being required to give evidence was less than appeared to be the case from his evidence before the Court. I accept the Crown’s submission that most if not all of the harm to the relationship had already been done by what Mr Hume said to his son and by Mr Hume giving the interview to police, for which he received a discount for past assistance. As to Mr Hume’s mental health, a realistic appreciation of the significance of that factor can be gained from the fact that Mr Hume assessed that any damage to his mental health or to their relationship as a result of his giving evidence against his son was outweighed by the benefit of a total 20% discount on his sentence in respect of the unrelated offending.

26. In all the circumstances, I was not satisfied that the nature and extent of the harm to Mr Hume or to his relationship with his son outweighed the desirability of having the evidence given.

27. For these reasons, on 26 July 2024, I ruled in relation to the objection to giving evidence taken by the witness, Mr Kristopher Hume, under s 18 of the Evidence Act 1995 (NSW) the objection is not upheld and he is required to give evidence.

**********

Decision last updated: 21 August 2025