R v Wilson (No 2)

1. [1]

   On 29 November 2017 I rejected objections to parts of the statements of two defence witnesses, Ms Goodwin and Mr Wellington, relied on in support of Ms Wilson’s tendency notice. The Crown’s case was that the evidence did not fall within s 78(b) of the Evidence Act 1995 (NSW).

2. [2]

   These are the reasons for those conclusions.

The tendency notice

1. [3]

   The tendency notice identified two tendencies:

   1. (1)

      Mr Shepstone had a tendency to act in an aggressive or violent manner toward women with whom he was in a relationship and towards Ms Wilson in particular.

   2. (2)

      Ms Wilson had a tendency to not necessarily report, or seek prosecution of, serious assaults perpetrated on her by Mr Shepstone.

The disputed evidence

1. [4]

   Mr Wellington is Ms Wilson’s foster son and Ms Goodwin was employed by The Disability Trust to supervise a crew of disabled workers who performed garden maintenance at residential premises, including at Ms Wilson’s home. They both came to believe that Mr Shepstone was being violent to Ms Wilson. There is no issue that he had a tendency to commit such violence, at least when affected by alcohol.

2. [5]

   Mr Wellington said in his statement that:

3. [6]

   In her statement Ms Goodwin described how she came to know Ms Wilson and what she had observed in 2011 and 2012. She said that:

Section 78 of the Evidence Act

1. [7]

   Section 78 provides:

2. [8]

   There was no issue between the parties that both statements satisfied the requirements of s 78(a).

3. [9]

   In Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 at [48], French CJ, Heydon and Bell JJ explained as to s 78 that:

4. [10]

   As to the word “necessary” in s 78(b) it was observed at [50]-[54]:

5. [11]

   At [57] it was observed as to s 78(b) that:

Mr Wellington’s evidence

1. [12]

   The effect of Mr Wellington’s evidence is that Ms Wilson did not tell him the truth about the cause of the injuries which he saw. These injuries included facial bruising and a black eye, as well as bruising to her wrist and a suspected broken arm.

2. [13]

   Mr Wellington’s evidence involved three separate opinions. The first, his conclusion about Ms Wilson’s emotional state, namely, that she was not prepared to tell him, her son, the truth about the cause of the injuries which he saw. That opinion rested on two further opinions which were embedded in his description of her injuries – that her facial bruising and a black eye were similar to those he had seen caused by punches, and that the bruising to her wrist looked like grab marks.

3. [14]

   The Crown’s objection went only to Mr Wellington’s description of the injuries he saw.

4. [15]

   I concluded that Mr Wellington’s evidence of his opinions about the injuries were admissible under s 78(b), because it was necessary for him to give evidence of them, in order to obtain an adequate account or understanding of the injuries which he saw.

5. [16]

   Without the disputed opinions, there would be no description of the nature of the injuries which Mr Wellington saw, on which his belief that Ms Wilson had become a victim of Mr Shepstone’s violence and his opinion that Ms Wilson was lying about their cause, were based.

6. [17]

   That would deprive the Court of an adequate account or understanding of Mr Wellington’s perceptions: Lithgow at [48]. Although Mr Wellington did not identify all of the “particular facts” which led him to his disputed opinions as to what he heard, saw and perceived, s 78(b) permitted evidence of those opinions to be received: Lithgow at [48].

7. [18]

   What weight could be given to his evidence, did not arise for determination at that point.

8. [19]

   The same conclusion had to be reached in relation to Ms Goodwin’s evidence. The effect of her evidence was that what she saw and heard led her to the conclusion that it was Mr Shepstone who was injuring Ms Wilson. Her description of the bruising which she saw, on which this opinion was based in part, was that it looked “like the result of punches”.

9. [20]

   Again, that opinion was admissible under s 78(b), because it was necessary for Ms Goodwin to give evidence of it, in order to obtain an adequate account or understanding of the injuries which she saw. Without that opinion, the Court would have no adequate account or understanding of what Ms Goodwin perceived about the injuries which she saw.

10. [21]

    Nor would it have her description of the nature of the injuries which she saw, on which her belief that Ms Wilson had become a victim of Mr Shepstone’s violence was based.

11. [22]

    In her statement Ms Goodwin also did not identify all of the “particular facts” which led her to her opinions about what she heard, saw and perceived, but nevertheless s 78(b) permitted the disputed evidence of her opinion to be received.