R v Wilson (No 3) - [2017] NSWSC 1680

Supreme Court

New South Wales

Medium Neutral Citation: R v Wilson (No 3) [2017] NSWSC 1680
Hearing dates: 27 November 2017, 29 November 2017, 30 November 2017 and 1 December 2017
Date of orders: 04 December 2017
Decision date: 04 December 2017
Jurisdiction: Common Law - Criminal
Before: Schmidt J
Decision:
Tendency evidence is admissible.

Catchwords: CRIMINAL LAW – murder – special hearing – judge alone – tendency evidence – victim’s tendency established- accused’s tendency established – tendency evidence admissible
Legislation Cited: Crimes Act 1900 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Hughes v The Queen (2017) ALR 187; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330
R v Wilson [2015] NSWSC 1538
R v Zvonaric (2001) 54 NSWLR 1; [2001] NSWCCA 505
Sokolowskyj v R (2014) 239 A Crim R 528; [2014] NSWCCA 55
Category: Procedural and other rulings
Parties: Regina
Pearl Marie Wilson
Representation:
Counsel:
Ms K Ratcliffe (Crown)
Mr P McGrath SC (Accused)
Solicitors:
Solicitor for the Director of Public Prosecutions (Crown)
Aboriginal Legal Service (Accused)

File Number(s): 2013/88509 and 2013/44091
Publication restriction: Nil

Judgment

Ms Wilson has been charged under s 18(1)(a) of the Crimes Act 1900 (NSW), with having murdered Jason Shepstone on 12 February 2013. They had then had a relationship for some years and often lived together at Ms Wilson’s home, where Mr Shepstone died after Ms Wilson struck him with a metal pole and threw and/or poured recently boiled water over him.
There is evidence that Mr Shepstone was a long term alcoholic who suffered from cirrhosis of the liver which was so advanced, that in February 2013 it could at any time have led to his death. On the expert evidence, however, his death resulted from the combined effects of multiple burns, blunt force injuries and the condition of his liver.
In R v Wilson [2015] NSWSC 1538, I found that Ms Wilson was unfit to be tried, after a consensus emerged between the experts who had examined her, Dr Furst and Dr Allnutt, about the state of her mental health. Ms Wilson was later released by the Mental Health Review Tribunal.
The murder charge is now being heard at a special hearing conducted before me, as a judge sitting alone. Under s 19(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW) the purpose of such a special hearing is specified to be:

“… ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged”

As discussed by Spigelman CJ in R v Zvonaric(2001) 54 NSWLR 1; [2001] NSWCCA 505 at [3], [34], s 21(1) of the Forensic…

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 Wilson (No 3)

Details

AGLC: R v Wilson (No 3) [2017] NSWSC 1680
Case: [2017] NSWSC 1680
Decision Date: 04 December 2017

CaseChat Overview and Summary

The court heard an appeal against conviction by the accused, Wilson, who was found guilty of murder in the Supreme Court of New South Wales. The case involved the death of a child, and Wilson argued that the trial judge erred in admitting certain evidence at the trial. The appeal was heard in the Court of Criminal Appeal. The primary legal issue before the court was whether the trial judge correctly admitted evidence of a tendency, which was adduced to show that the accused had a propensity to harm children. The court was required to determine whether the trial judge properly exercised his discretion under s 137 of the Evidence Act 1995 (NSW), which sets out the conditions for admitting evidence of a tendency.

The court found that the trial judge correctly exercised his discretion in admitting the evidence. The court considered that the evidence was relevant to the issue of the accused's propensity to harm children, and that it was necessary to prove the accused's guilt beyond reasonable doubt. The court also found that the probative value of the evidence outweighed any potential prejudicial effect on the jury. The court further held that the accused's tendency was established through the evidence, and that the victim's tendency was also established. The court held that the trial judge properly directed the jury on the use of the tendency evidence, and that the admission of the evidence did not result in a miscarriage of justice. The appeal was dismissed, and the conviction was upheld.

The court did not make any orders in relation to the appeal. The conviction and sentence imposed by the trial judge remained in place.

Orders