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

1. [1]

   The Court has before it applications by the Crown for rulings as to whether:

   1. (1)

      certain evidence to the effect set out in pars 13 and 14 of the statement of AA [1] made on 4 July 2024 is inadmissible, in accordance with s 137 of the Evidence Act 1995 (NSW); and

   2. (2)

      the Electronically Recorded Interview with Suspected Person conducted with the accused, Mr Walmsley-Hume, on 7 April 2022 (the ERISP) is inadmissible under s 138, s 135 or s 137 of the Evidence Act.

Background and matters in issue

1. [2]

   The background to these applications 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.

2. [3]

   It is alleged that at about 2:55 pm on 24 February 2022 the deceased was walking along the side of Old Southern Road, South Nowra, about 7 metres from the roadway and Mr JWH was driving a white utility, with Ms KW in the passenger seat, along Old Southern Road. He drove off the roadway and collided with the deceased and then drove back onto, and continuing 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.

3. [4]

   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.

4. [5]

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

   1. (1)

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

   2. (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.

5. [6]

   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.

6. [7]

   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 while knowing that he had committed the murder of the deceased.

7. [8]

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

8. [9]

   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 on 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.

9. [10]

   In respect of Ms Walmsley, the matters in issue included whether:

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

10. [11]

    The Crown relies on evidence of previous animosity and interactions between the two accused and the deceased and his associates to establish the motive for the conduct of each of the accused on 24 February 2022 and to assist in establishing, in particular, that:

    1. (1)

       Mr Walmsley-Hume intended to kill or cause grievous bodily harm to the deceased;

    2. (2)

       Ms Walmsley participated in a joint criminal enterprise with Mr Walmsley-Hume to intentionally cause grievous bodily harm to the deceased by striking him with a motor vehicle or to intimidate him with the vehicle agreeing to the possibility that the co-accused might intentionally cause grievous bodily harm to the deceased in so doing; and

    3. (3)

       Ms Walmsley’s knowledge of Mr Walmsley-Hume’s murdering the deceased and, specifically, his intention to kill or cause grievous bodily harm.

11. [12]

    In addition to more general evidence of animosity between Mr Walmsley-Hume and the deceased and his associates to be adduced from AA, the previous interactions between the two accused and the deceased and his associates have been identified as follows:

    1. (1)

       the Jelly Bean Park incident in about 2018;

    2. (2)

       the Orent Point incident in around June 2019;

    3. (3)

       the PCYC incident on 13 August 2020;

    4. (4)

       the First Macdonald’s incident on 25 October 2021;

    5. (5)

       the Second Macdonald’s incident on 27 November 2021; and

    6. (6)

       the Incident outside Ms G Hart’s house on 7 January 2022.

12. [13]

    The 7 January 2022 incident is alleged to have involved the following. Mr Walmsley-Hume drove, with AA as a passenger, past the house where the deceased lived in Old Southern Road where members of the family were outside and then drove towards the family members on the front lawn. After driving away, Mr Walmsley-Hume dropped AA off and collected his father from 13 Parramatta St, Nowra. They returned to the deceased’s house a short time later and parked across the road from the house. The two men got out of the car carrying weapons and approached the deceased’s house. The deceased and another person armed themselves with a metal pole and a piece of wood. The deceased struck Mr Walmsley-Hume with a metal pole and the other person hit the father. The deceased’s family threw rocks at the car and smashed the windscreen. Mr Walmsley-Hume was heard to say to the deceased “[y]ou’re gone” and “[y]ou’re fucken dead”.

Admissibility of pars 13 and 14 of the Statement of AA of 4 July 2024

1. [14]

   Both accused objected to the admission of pars 13 and 14 of the statement of AA of 4 July 2024 under s 137 of the Evidence Act 1995 (NSW). Those paragraphs were as follows:

2. [15]

   For the reasons given during the hearing and before ruling on the question of admissibility, I made an order on the ground in s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), that there be no publication of the evidence contained in pars 13 and 14 of the statement of AA dated 4 July 2024, or any information or submissions concerning that evidence until the conclusion of the trial in this matter or until further order of the Court. I also specified that this order was to apply throughout the Commonwealth of Australia.

3. [16]

   Mr Anderson of counsel who appeared for Ms Walmsley submitted that these paragraphs had limited probative value, even if the evidence were accepted at its highest, because it was not alleged that Ms Walmsley was a participant in the conversation and it was not clear where she was at the time of that conversation. It was noted that the witness did not hear any names and could not remember the specifics. In addition, it was submitted that the last sentence of par 13 was vague and unparticularised. Similar submissions were made in respect of par 14. It was also submitted that there was other admissible evidence of a background of animosity between the deceased and the accused which meant that the probative value of the paragraphs in question was limited.

4. [17]

   As to the danger of unfair prejudice, it was submitted that the reference to outlaw motorcycle gangs and having bikies shoot the deceased had a “strong capacity” to inflame or misdirect the jury’s attention away from their proper task relating to the events of 24 February 2022 which were the subject of the murder charge. In addition, it was submitted that given the nature of the evidence it was likely to be given undue weight by a jury. A further form of unfair prejudice was said to be that this evidence involved an uncharged allegation of conspiracy to murder of which the accused were only given notice 11 days ago. In this regard, there was no evidence of any specific difficulty with preparation. Nor was any particular prejudice identified.

5. [18]

   Ms Hall of senior counsel who appeared for Mr Walmsley-Hume in effect adopted Mr Anderson’s submissions and emphasised that the challenged evidence was attended by considerable vagueness and that the witness “didn’t hear any names and can’t remember the specifics”. The lack of detail in the challenged evidence, it was said, reduced its probative value and it was also submitted that the statement that the witness did not hear any names contradicted the earlier evidence that the threat was specifically against the deceased who was named. In relation to unfair prejudice, Ms Hall emphasised the effect that evidence of alleged family involvement with an outlaw motorcycle gang might have on the jury’s reasoning and the unfairly prejudicial effect that bad character evidence of this nature might also have. Submissions were also made concerning the late timing of this material being provided to the accused and the potential need for further disclosure. No particular prejudice was, however, specifically identified.

6. [19]

   The Crown submitted that it had raised the possibility of the evidence being adduced without reference to the involvement of an outlaw motorcycle gang or bikies in order to remove or reduce the danger of unfair prejudice. Even without that aspect of account given by AA, it was submitted that the evidence had significant probative value in that it was an unambiguous recollection of a possible shooting of the deceased as retaliation. In relation to the late provision of the information, it was noted that no specific difficulties had been articulated.

7. [20]

   In relation to the possibility of excluding the references to an outlaw motorcycle gang or bikies, Mr Anderson submitted that this would make cross examination on this evidence more difficult and in relation to the lateness of the information it was said that he would like some time to take instructions. Ms Hall submitted in effect that “pared back allegations” would mean that there was a lack of substantial detail and there would be little left to cross examine on as there were no details of the allegations, except for the details about an outlaw motorcycle gang and bikies that the witness could not mention. This was said to amount to significant prejudice.

8. [21]

   Section 137 of the Evidence Act provides:

9. [22]

   The “probative value” of evidence is defined in the Dictionary to the Evidence Act to mean:

10. [23]

    The assessment of the probative value, "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue", requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest and on the assumption that the jury will accept the evidence: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [44], [47] and [49] (French CJ, Kiefel, Bell and Keane JJ) and see also at [52].

11. [24]

    In the present case and given the matters in issue identified above, I am of the view that the evidence in pars 13 and 14 of AA’s statement has the ability to affect that assessment of the probability of those facts in issue to a significant extent. For example, that evidence, at its highest and assuming it is accepted by the jury, would be significant in determining whether Mr Walmsley-Hume intended to kill the deceased or cause his grievous bodily harm when he drove so as to collide with the deceased on 24 February 2022 and whether Ms Walmsley knew of Mr Walmsley-Hume’s intention or was party to a joint criminal enterprise with him as alleged by the Crown.

12. [25]

    I did not accept that submission that the removal of any reference to outlaw motorcycle gangs or bikies would deprive the evidence of any significant probative value or significantly reduce that value. The specific identity or background of the persons who might carry out any proposed shooting was not of particular significance in relation to the matters in issue. Consequently, the probative value of the evidence of AA, without the references to motorcycle gangs or bikies, would remain considerable in relation to the facts in issue in the present case, which I have identified above.

13. [26]

    Nor did I accept Ms Hall’s submission that the pared back version lacked any significant details about which the witness could be cross examined so that there was a danger of unfair prejudice on that basis. In relation to the first and most significant conversation referred in par 13, the witness provided precise details of when and where the conversation took place, who was in the garage, who spoke, the substance of what was said, who was named as the intended victim and the means of killing.

14. [27]

    As to the evidence of the other two times that Mr JWH and Ms KW went to the uncle’s house referred to in pars 13 and 14, there are fewer details but, taken at their highest and assuming that the evidence is accepted by the jury, that evidence, in the context of pars 13 and 14 and the evidence as a whole, has substantial probative value in relation to the relevant facts in issue.

15. [28]

    In my view, the principal, if not the only, source of a significant danger of unfair prejudice was the references to an outlaw motorcycle gang and the accused’s family connection with such a gang. Reference to such matters in AA’s evidence had, in my view, great potential to excite an overwhelming emotional response in the jury and distract them from their proper task of determining whether the Crown had proved beyond reasonable doubt the elements of each of the offences with which the accused were actually charged. Evidence of a family relationship with bikies could also lead the jury to consider that each of the accused was of bad character and reason that, as a result, they were guilty. If, however, the references to an outlaw motorcycle gang and bikies were eliminated from this evidence, the danger of unfair prejudice to the accused would, in my view, be effectively reduced to such a significant extent that any remaining danger of unfair prejudice would not come close to outweighing the probative value of the evidence in question.

16. [29]

    As to the submissions concerning prejudice to the accused because of the fact that this evidence had only been provided less than two weeks prior to the trial, no specific difficulty or particular prejudice, arising out of the recent provision of the material, was identified. In these circumstances, I did not accept that reliance by the Crown on pars 13 and 14 of AA’s statement of 4 July 2024 involved unfair prejudice or gave rise to a danger of unfair prejudice to the accused on that basis, for the purposes of s 137.

17. [30]

    Bearing in mind these considerations and my assessment of the probative value of the evidence and the danger of the evidence being unfairly prejudicial, I was satisfied that the probative value was not outweighed by the danger of unfair prejudice to the accused provided that there were no references in the evidence to be admitted to bikies or an outlaw motorcycle gang or any person’s membership of such a gang. Accordingly, it was not appropriate under s 137 of the Evidence Act to refuse to admit the evidence in pars 13 and 14 of AA’s statement, with the exception of any references to bikies and an outlaw motorcycle gang or any person’s membership of such a gang.

18. [31]

    For these reasons, on 16 July 2024, I gave the following ruling:

19. [32]

    In light of that ruling it I deemed it appropriate to vary the order made under the Court Suppression and Non-publication Orders Act on 15 July 2024 so that the order read 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.

Admissibility of the ERISP

1. [33]

   Mr Walmsley-Hume objected to the admission of the ERISP under s 138 of the Evidence Act essentially on the ground that it was obtained by impropriety. It was also submitted that the ERISP should be excluded under ss 135 and 137.

2. [34]

   Section 138 is relevantly in the following terms:

3. [35]

   Section 138 provides for the conditional exclusion of evidence obtained by, or in consequence of, impropriety or illegality in any proceeding to which the Act applies, including criminal proceedings such as the present, although the exclusion is not confined to evidence that is improperly or illegally obtained by police or other law enforcement agencies: Kadir v The Queen; Grech v The Queen (2020) 267 CLR 109; [2020] HCA 1 (Kadir) at [12] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ). Under s 138, a court may admit the evidence obtained by impropriety if it is persuaded that the balance of the competing public interests requires that outcome.

4. [36]

   The desirability of admitting evidence referred to in s 138(1) recognises the public interest in all relevant evidence being before the fact-finding tribunal. Similarly, the undesirability of admitting evidence recognises the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally: Kadir at [13].

5. [37]

   In a criminal proceeding in which the prosecution seeks to adduce evidence that has been improperly or illegally obtained by the police, the focus is on balancing the desirable goal of convicting wrongdoers against the undesirable effect of giving curial approval, or even encouragement, to the unlawful conduct of those whose task it is to enforce the law: Kadir at [12] and [13].

6. [38]

   Whether evidence has been obtained improperly by police is determined by reference to "minimum standards of acceptable police conduct”: Kadir at [14]. That formulation of the standard of impropriety was derived from Ridgeway v the Queen (1995) 184 CLR 19; [1995] HCA 66, which was decided before the introduction of the uniform evidence legislation, including the Evidence Act 1995 (NSW). At 37, Mason CJ, Deane and Dawson JJ held in a somewhat different context as follows:

7. [39]

   Thus, conduct which is not said to involve any contravention of an Australian law will amount to “impropriety” for the purposes of s 138(1) if it involves a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances.

8. [40]

   Where an accused seeks to have an ERISP excluded from evidence under s 138, the accused bears the onus of establishing on the balance of probabilities that there was an impropriety or contravention of Australian law in obtaining the evidence subject to the objection in the ERSPI: R v Hawkins [2023] NSWSC 1370 at [107] (Hamill J) and s 142 of the Evidence Act. If that onus is discharged, the onus then shifts to the prosecution to establish that the evidence “is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”: Kadir at [47].

9. [41]

   Against the background of those general principles, in determining the question of whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence, the non-exhaustive list of considerations in s 138(3) of the Evidence Act must be taken into account.

10. [42]

    Mr Walmsley-Hume did not rely on any contravention of an Australian law as the basis for inadmissibility under s 138. Rather, he relied on what was said to be an “impropriety” within s 138(1)(b) because of the way in which Mr Walmsley-Hume’s participation in the interview was procured, which was submitted to be “not consistent with the spirit of” Pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPR Act). It was submitted that he was taken from the dock into the interview room in such a way that suggested compliance with the legislation but was not consistent with the spirit of the legislation, insofar as fairness to the accused was concerned. In particular, it was said to be unfair because of the indications to Mr Walmsley-Hume that he would have certain opportunities to say whether he consented to be interviewed, but these opportunities were ultimately not provided.

11. [43]

    Ms Hall SC acknowledged that it would have been open for Mr Walmsley-Hume to refuse to answer to questions once the interview commenced but pointed to the fact that he was “a vulnerable young indigenous man” who was only 18 years of age, in pain and not given an opportunity to say that he did not consent to an interview. She also submitted that he did not appear, from time to time during the recording of the interview, to comprehend fully what was going on.

12. [44]

    In addition, it was contended that the preliminary questions up to Q46 in the ERISP made it apparent that the police had determined to interview Mr Walmsley-Hume regardless of his consent. It was then, in effect, submitted that this determination on the part of the police and the associated disregard for his lack of consent placed him in an unfair position where he was not able effectively to exercise his right to refuse to be interviewed.

13. [45]

    In order to assess whether there was any relevant impropriety and, if so, its nature and extent, it is necessary to examine in some detail what actually occurred. For this purpose, I have considered the evidence of DSC Klein in his statement of 30 May 2022, the form of adoption of ERISP signed on 7 April 2022, the custody management record in relation to Mr Walmsley-Hume on 7 April 2022 and the emails from the Aboriginal Legal Service confirming their instructions received from Mr Walmsley-Hume and Ms Walmsley on 7 April 2022. I have also viewed recordings taken by body worn video (BWV) and of the ERISP where available, as well as having regard to the relevant transcripts of recordings. DSC Klein was not cross-examined on this application.

14. [46]

    What occurred is as follows. On 7 April 2022, Mr Walmsley-Hume and Ms Walmsley were arrested at about 9:00 am at Terry Hills and they were taken separately at about 9:30 am to Manly Police Station, where Mr Walmsley-Hume arrived at 10:10 am and was accepted into custody. There was no suggestion that there was any impropriety in relation to Mr Walmsley-Hume ’s arrest and processing at the police station.

15. [47]

    At 10:38 am, the custody management record noted that Mr Walmsley-Hume was cautioned and a summary of his rights was read to him. It was recorded that he “[d]id not appear interested in listening to the caution. Explained to him several times. Evasive. Signed and provided copy.” There was, quite properly, no suggestion that s 122 of the LEPR Act was not complied with in respect of Mr Walmsley-Hume.

16. [48]

    At 11:42 am, after receiving information from the custody manager DSC Klein had a conversation with Mr JWH in the dock which included the following:

17. [49]

    From this conversation, it was apparent that Mr Walmsley-Hume understood that he did not have to say or do anything (which he said he had been told “multiple times”), that he had been arrested for murder but the issue which troubled him was that he did not understand how the police could have grounds to accuse him of that crime. Most significantly, Mr Walmsley-Hume made clear that he wanted to know what evidence the police had as the basis for the charge of murder. It was equally made equally clear by DSC Klein, effectively on two occasions, that if Mr Walmsley-Hume wanted to know what evidence the police were relying on to charge him with the murder of Taj Hart, police would disclose that information to him in a recorded interview. It was also noted that Mr Walmsley-Hume would have the opportunity to tell his side of the story in such an interview.

18. [50]

    In these interactions with Mr Walmsley-Hume, DSC Klein allowed him to have a toilet break when requested and did not seek to exploit Mr Walmsley-Hume’s desire to find out what the evidence against him was by proceeding immediately to an interview. Rather DSC Klein raised with Mr Walmsley-Hume obtaining legal advice from a solicitor before they proceeded any further and organised for him to obtain that advice.

19. [51]

    For 25 minutes between 11:45 am and 12:10 pm, Mr Walmsley-Hume spoke on the telephone to a solicitor from the Aboriginal Legal Service (ALS). The solicitor then spoke to DSC Klein and she passed on to him her instructions from both Mr Walmsley-Hume and Ms Walmsley. These instructions were subsequently confirmed by emails from the solicitor to DSC Klein. The instructions from the ALS solicitor on behalf of Mr Walmsley-Hume, as set out in the confirmatory email, were that he did not consent to any forensic procedure and did not wish to participate in a line-up but it was otherwise stated, in the confirmatory email:

20. [52]

    The ALS solicitor did not convey to DSC Klein any instructions that Mr Walmsley-Hume did not wish to be interviewed. Nor was there any evidence that immediately after he spoke to the solicitor Mr Walmsley-Hume indicated whether or not he consented to be interviewed. In my view, it is probable that up to this point he did not say one way or another whether he wanted to be interviewed as he found it difficult to decide. On the one hand, he wanted to know what evidence the police had against him and he was aware that this would be disclosed if he participated in a recorded interview, as DSC Klein had explained. On the other hand, as disclosed later, he had received advice not to consent to an interview.

21. [53]

    At some time between 12:10 pm and 12:45 pm, Mr Walmsley-Hume requested a support person. As a result of discussions with Mr Walmsley-Hume, DSC Klein formed the view that Mr Walmsley-Hume was having difficulty understanding the time out procedures in relation to organising a support person. In order to address that problem, DSC Klein organised for the custody manager to contact the ALS. As I understood it, the time out procedures referred to were the times falling within s 117(1)(d), (e) and (f) of the LEPR Act which were to be excluded from the determination of how much of the investigation period had elapsed.

22. [54]

    Notwithstanding the difficulty understanding the time out procedures, this request for a support person in my view demonstrated that, to a significant extent, Mr Walmsley-Hume was capable of asserting his rights in custody, if he wished to do so. In addition, the steps taken by DSC Klein to facilitate Mr Walmsley-Hume’s understanding of the time out procedures indicated that he did not seek to exploit any vulnerability or lack of understanding on Mr Walmsley-Hume’s part in that regard.

23. [55]

    Between 12:47 pm and 12:50 pm Mr Walmsley-Hume spoke again to the same ALS solicitor. The custody management record noted in respect of this communication:

24. [56]

    At 12:59 pm, DSC Klein had another conversation recorded on BWV with Mr Walmsley-Hume. On viewing and listening to the recording of that conversation, I am satisfied that it included what follows:

25. [57]

    There was no evidence to establish that Mr Walmsley-Hume had actually said previously that he did not consent to an interview and DSC Klein’s comment that he had not asked that indicated that the issue of consent to an interview may not have been expressly addressed prior to that time. In addition, Mr Walmsley-Hume’s expression that he “thought” he did not consent to an interview suggests a degree, albeit quite limited, of possible uncertainty. Nonetheless, it is clear that DSC Klein said that he would ask Mr Walmsley-Hume whether he wanted to do an interview when they were in the room and, at that point, Mr Walmsley-Hume would be able to choose whether or not to be interviewed.

26. [58]

    Mr Walmsley-Hume went into the interview room without demur. As DSC Klein had said, discs were put into the recording machine and what occurred in that room was recorded. The recording commenced at 1:05 pm. After identification of Mr Walmsley-Hume as the person in custody and the only two other persons present as DSC Klein and PCSC Watters, the questioning by DSC Klein continued:

27. [59]

    Q5 contained in substance the form of caution specified in s 122(1) of the LEPR Act, which Mr Walmsley-Hume said that he had heard multiple times. Mr Walmsley-Hume answered that he understood what was said. If this was so, he must have understood that he did not have to answer the questions he was asked. DSC Klein did not, however, at this point also specifically ask Mr Walmsley-Hume whether he wanted to be interviewed, as the detective had said that he would.

28. [60]

    Thereafter, Q7 to Q46 were in effect seeking from Mr Walmsley-Hume confirmation of what had happened from the time of his arrest up to that time. At Q31, in relation to whether he understood his rights in custody when they were explained to him by the custody manager, Mr Walmsley-Hume answered: “Not really, but I sat down and read them for a bit and I sort of understand them now.”

29. [61]

    At Q39 et seq, the following was said:

30. [62]

    It appears that DSC Klein understood that Mr Walmsley-Hume was referring to the advice not to consent to an interview rather than an actual refusal of consent and then he said “I will ask you whether you want to do certain things from now on”.

31. [63]

    The confirmation of what had previously occurred then continued from Q42 to Q44, at which point it was said:

32. [64]

    Two observations can be made. First, it was clear that Mr JWH still wanted to find out more information as to why he was there. Secondly, it appears from what DSC Klein said at Q41 and Q46 that he thought that cautioning Mr JWH at Q46 amounted to asking him if he “want[ed] to do certain things from now on” as he said he would in Q41.

33. [65]

    Q47 to Q83 related to DSC Klein requiring Mr JWH as the driver of the white utility on 24 February 2022 to disclose the identity of the driver and the passenger under s 14(1)(a) of the LEPR Act. It was not submitted that there was any failure to comply with any relevant provision of the LEPR Act in DSC Klein doing so.

34. [66]

    After stating, in answer to Q66, Q67 and Q68 (there seems to be a slight error in the transcript at Q68 in that it appears that was not a question but part of the answer to Q67), that his father dropped the white utility off to him at about 3 or 4 o’clock on the afternoon of 24 February 2022, Mr Walmsley-Hume said:

35. [67]

    The questioning concerning the driver of the white utility continued and, after giving his father’s name as the person who dropped the car off in answer to Q77, Mr Walmsley-Hume continued:

36. [68]

    Given all that has passed between them, it was clear the Mr Walmsley-Hume understood that the evidence concerning the murder charge would be disclosed to him if he participated in an electronically recorded interview, as DSC Klein had previously explained to him, and he was sitting in the interview room for that purpose. It also appeared that Mr Walmsley-Hume had no difficulty at this point in asserting what he perceived to be his rights.

37. [69]

    After completing the questions concerning the disclosure required under s 14(1)(a) of the LEPR Act, the following occurred:

38. [70]

    After Mr Walmsley-Hume asked for painkillers apparently related to being dragged by the arm when he got out of the wagon at the police station that morning, from Q98 the following occurred:

39. [71]

    After further questions which Mr Walmsley-Hume answered, the interview included:

40. [72]

    From this passage, it did not appear that Mr Walmsley-Hume was under any misunderstanding as to what was going on, that he was not there voluntarily in order to find out what evidence the police had of his involvement in the alleged murder or that he was not able to understand and look after his own interests as he perceived them.

41. [73]

    During the interview, Mr Walmsley-Hume was told in some detail, and in some cases asked questions about, numerous items of information obtained from witnesses concerning the events of 7 January 2022, 24 February 2022 and the background to those events. In addition, Mr Walmsley-Hume was shown numerous items of evidence including, by way of example, leasing documentation concerning the white utility, photographs, a snapchat video, material obtained from CCTV cameras and dashcam footage.

42. [74]

    When he requested a drink, Mr Walmsley-Hume agreed to the tape being kept running while one was obtained for him, Q369 et seq. At times, he was allowed a toilet break and the interview was paused, Q513 and Q518, Q1181 to Q1189.

43. [75]

    There was a further caution given at Q1192, after a toilet break and when the detectives indicated some concern about the length of investigation time left.

44. [76]

    The interview, apart from formal matters, concluded at 3:56 pm, Q1668.

45. [77]

    When asked at Q1673 by DSC Klein whether Mr Walmsley-Hume had been threatened in any way by him, the response was:

46. [78]

    At the end of the recording is Mr Walmsley-Hume’s interaction with the custody manager as the independent officer asking questions as to the conduct of the interview. That interaction included:

47. [79]

    The form of adoption of ERISP completed by the independent officer between 3:59 pm and 4:03 pm included the following summary of the questions and answers:

48. [80]

    Mr Walmsley-Hume was not asked during the interview in express terms whether he consented to being interviewed. There was no requirement in the LEPR Act that this should be done. I have explained above that in light of what was said prior to the interview and at Q41, DSC Klein’s cautioning Mr Walmsley-Hume at Q46 and subsequently on a number of occasions did provide Mr Walmsley-Hume with a genuine opportunity to refuse to answer questions in the interview room.

49. [81]

    When Mr Walmsley-Hume’s involvement in the process is looked at as a whole and despite his vulnerabilities as an 18-year-old man who identified as Aboriginal, there was no sufficient reason to believe that he did not understand that he had a right not to answer questions, or that he was incapable of exercising his right to silence if he had wanted to. Mr Walmsley-Hume was capable of asserting other rights and his perceptions of his rights before and during the interview. In my view, Mr Walmsley-Hume decided to answer the questions put to him, and thus to participate in the interview, in order to find out what evidence the police had against him. To use his own words, he decided to “cooperate” so that the police would “work with [him]”. He was not forced to do so. He was not tricked into doing so. He was not treated harshly or unfairly or kept without breaks or water in order to induce him to do so.

50. [82]

    Mr Walmsley-Hume’s statements at the end of the interview that he was “intimidated” is to be understood in light of his answer to Q1673 where he indicated that the intimidation was the result of his perception that police were speculating and accusing him of something that he maintained he had not done and “sort of that is a threat, sort of that is a bit intimidating”. This was not, in my view, a relevant form of intimidation for the purposes of s 138. Furthermore, there was nothing of significance that occurred which could be said to amount to harassment or relevant intimidation engaged in by the police officers. This is confirmed by Mr Walmsley-Hume’s last comment in answer to the question whether he had any complaint about the way he was interviewed. In his own words, the complaint did not rise above “a little bit” because “I didn’t get my rights, I wasn’t allowed to know why I was here at all. They’ve speculated and accused with little evidence”. That perception of Mr Walmsley-Hume was not, however, justified in light of what occurred, in that police told him clearly that he was charged with the murder of Taj Hart on 24 February 2022 and disclosed in significant detail what the evidence against him was.

51. [83]

    Furthermore, the fact that DSC Klein cautioned Mr Walmsley-Hume instead of asking him whether he wanted to be interviewed did not in my view amount to manipulation. Manipulation relevantly would involve some deliberate conduct on the part of DSC Klein to trick or trap Mr Walmsley-Hume into answering questions which were recorded when he did not wish to do so. No suggestion was made in submissions that this was what occurred, which was entirely proper since DSC Klein was not cross examined and it was not put to him that he deliberately manipulated Mr Walmsley-Hume or deliberately did any similar thing.

52. [84]

    As noted above, the explanation of what occurred was that DSC Klein believed that the cautions he administered amounted in effect to reminding Mr Walmsley-Hume of his rights and, implicitly, giving him the opportunity of saying that he would not answer any questions, or any more questions, at the relevant time. This was an understandable belief, given:

    1. (1)

       that DSC Klein had at the outset made clear to Mr Walmsley-Hume that police would disclose the evidence in the course of a recorded interview if he wanted to know the evidence against him,

    2. (2)

       Mr Walmsley-Hume’s repeated requests to have police disclose the evidence against him, in return for which he was prepared to “cooperate” by answering questions;

    3. (3)

       the ability to assert his rights or perceived right which Mr Walmsley-Hume demonstrated before and during the interview; and

    4. (4)

       the sequence of questions and answers at Q41 to Q46 referred to above and the other cautions delivered during the interview.

53. [85]

    I did not accept the submission that DSC Klein’s conduct should be described as being “not consistent with the spirit of” Pt 9 [of the LEPR Act]”, as Ms Hall contended. In all the circumstances, there was no intimidation, harassment or manipulation. Nor was there any other conduct on the part of police which could be said to be clearly inconsistent with minimum standards of acceptable police conduct. Mr Walmsley-Hume’s rights were respected and accommodated and the exercise of them was not significantly hindered by police in any way.

54. [86]

    For these reasons, it should not be concluded that the ERISP was obtained in consequence of an impropriety within s 138(1) of the Evidence Act. It follows that, in these circumstances, the ERISP is not inadmissible under that section.

55. [87]

    Further, in case I am wrong in that conclusion that there was no impropriety, I have considered whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in consequence of impropriety, having regard to the matters in s 138(3)(a) to (h). If there was any impropriety, it arose out of the fact that DSC Klein said that he would ask Mr Walmsley-Hume if he consented to an interview but never asked the question in those terms. I have already found that this conduct on the part of the detective was not deliberate.

56. [88]

    In respect of factors (a) and (b) of s 138(3), the evidence in the ERISP to a significant extent involved Mr Walmsley-Hume providing an exculpatory version of the events on 24 February 2022 which was inconsistent with the case now put on his behalf, namely that he accepts that was the driver of the white ute which hit the deceased on that occasion. The evidence has significant probative value, however, in relation to the principal matter in issue, namely the intention with which Mr Walmsley-Hume drove towards the deceased and hit him and in particular, for example, whether the prior incidents alleged by the Crown between Mr Walmsley-Hume and the deceased and his associates, which relate to motive and intention, took place and what they involved and whether Mr Walmsley-Hume suffered the injury to his elbow in January 2022 as a result of blow delivered by the deceased or a motor bike accident. In those regards, the evidence can also be said to have some substantial importance. In addition, the evidence is important for the evaluation of Mr Walmsley-Hume’s credibility in relation to those matters and other matters about which he may give evidence. These considerations favour admission of the evidence.

57. [89]

    As to factor (c), the seriousness of the allegation, since the charge is one of murder, this factor militates in favour of the evidence being admitted in spite of any impropriety.

58. [90]

    Factor (d) requires regard to be had to the gravity of the impropriety. In this case, in my view, assuming there was some impropriety, it was in all the circumstances an impropriety whose gravity was not such as to weigh significantly against admission of the evidence. This was so because, despite the impropriety, Mr Walmsley-Hume was not effectively deprived of his right to refuse to answer questions in the interview room if he chose to do so.

59. [91]

    Factor (e) concerns the deliberateness or recklessness of the impropriety. As I have explained it was not suggested that any impropriety in the present case was deliberate and such a finding should not be made, especially since an allegation that DSC Klein engaged in deliberate impropriety was not put to him in cross examination. Nor do I accept that there was any recklessness on DSC Klein’s part in Mr Walmsley-Hume not being expressly asked if he consented to being interviewed. DSC Klein cautioned Mr Walmsley-Hume on numerous occasions and did not proceed regardless of whether Mr Walmsley-Hume wanted to answer questions or not. As I explained above, in light of Mr Walmsley-Hume’s expressed desire to be informed of the police evidence and their conversations, DSC Klein probably believed that the cautions he administered amounted in effect to reminding Mr Walmsley-Hume of his rights and, implicitly, giving him the opportunity of saying that he would not answer any questions, or any more questions, at the relevant time if that was what he decided to do.

60. [92]

    In this context, the Court of Criminal Appeal has held that “where the breach of the law is innocent, and the alleged offence serious there must be powerful countervailing considerations before the evidence should be rejected”: R v Camilleri (2007) 68 NSWLR 720; [2007] NSWCCA 36 at [25] (McClellan CJ at CL, Bell and Howie JJ agreeing). In the present case, where there has been no breach of the law and no deliberateness or recklessness in the impropriety, factor (e) does not weigh in favour of inadmissibility.

61. [93]

    As to factor (f) whether the impropriety was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, it was not submitted that there was any such inconsistency and it did not appear to me that any of the relevant rights, such as those in Articles 9 or 10, were violated.

62. [94]

    In respect of factor (g), It seems unlikely that there would be any other proceedings in relation to any impropriety of the nature which, it is assumed for the purposes of consideration, occurred in the present case. This is so given the minor nature of any impropriety that might be found to exist.

63. [95]

    For the purposes of factor (h), it can be noted that where, as in this case, any impropriety was not deliberate or reckless, the difficulty of obtaining the evidence would be likely to be a neutral consideration: Kadir at [20]. Accordingly, although it would have been difficult for the police to obtain Mr Walmsley-Hume’s evidence otherwise, this consideration does not weigh particularly one way or the other in determining whether the evidence should be admissible.

64. [96]

    Balancing the considerations and given the circumstances of the arrest and interview of Mr Walmsley-Hume taken as a whole, I have concluded that, if contrary to my conclusion above there was some impropriety in obtaining the evidence in the ERISP, the desirability of admitting the evidence outweighs the undesirability of admitting that evidence obtained in consequence of the impropriety.

65. [97]

    For all these reasons, the ERISP of Mr Walmsley-Hume is not inadmissible by virtue of s 138 of the Evidence Act.

66. [98]

    It was also submitted that the ERISP should not be admitted under s 135 and 137 of the Evidence Act. Those sections relevantly provide:

67. [99]

    As observed above and contrary to Ms Hall’s submission, the ERISP does have significant probative value, assessed in accordance with the principles in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, in relation to the issue of the intention with which Mr Walmsley-Hume drove towards the deceased and hit him and in particular, for example, whether the prior incidents alleged by the Crown between Mr Walmsley-Hume and the deceased and his associates, which relate to intention and motive, took place and what they involved and whether Mr JWH suffered the injury to his elbow in January 2022 as a result of blow delivered by the deceased or a motor bike accident.

68. [100]

    The unfair prejudice of the ERISP being played to the jury was said to be that:

    1. (1)

       this was an interview to which Mr Walmsley-Hume did not consent and police persistence reinforced the perception that he must participate regardless; and

    2. (2)

       Mr Walmsley-Hume lacked the ability to exercise judgment in the circumstances because he was a young indigenous man who did not have a genuine understanding of his rights while in custody and had difficulty understanding what was being said to him by police.

69. [101]

    For the reasons already given in relation to s 138, I do not accept that Mr Walmsley-Hume did not understand his right not to answer questions and could not exercise proper judgment in relation to whether to answer the questions asked. He had received advice from the ALS. He wanted to know the evidence against him and knew that that evidence would be disclosed in a recorded interview with police. He decided to “cooperate” in order to have the evidence disclosed. Accordingly, the prejudice identified by Ms Hall either did not arise or was not such as to give rise to a danger of unfair prejudice if it were admitted. I do not accept that the probative value of the ERISP is outweighed by the danger of unfair prejudice to the defendant and thus the evidence would not be inadmissible under s 137 of the Evidence Act.

70. [102]

    For essentially similar reasons, it has not been established that the probative value of the ERISP is substantially outweighed by the danger that the evidence might be unfairly prejudicial to Mr Walmsley-Hume, so as to enliven the power to exclude the evidence under s 135.

71. [103]

    For all of these reasons, the Court rules that the ERISP given by Mr Walmsley-Hume on 7 April 2022 is not inadmissible under s 138, or under s 137 or s 135 of the Evidence Act.