R v Walmsley-Hume; R v Walmsley (No 3)

1. [1]

   The Court has before it an application by the Crown for a number of witnesses to give evidence via audio-visual link. Since the application was consented to by counsel for each accused in this matter, I dispensed with the need for the Crown to file and serve a notice of motion and affidavit in support.

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 north along the western side of Old Southern Road, South Nowra, about 7 metres from the roadway and Mr Walmsley-Hume was driving a white utility, with Ms Walmsley in the passenger seat, north along Old Southern Road. He drove off the roadway and collided with the deceased and then drove back onto, and continued 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 a 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 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 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]

   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.

Relevant circumstances

1. [11]

   The Crown seeks directions under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ('the AVL Act') that the evidence of 5 witnesses be given via audio visual link from a Nowra Courthouse or Narooma Child Abuse Squad (CAS) office being places in New South Wales other than the Court room in which the Court is sitting. The witnesses are:

   1. (1)

      Elise Plumpton;

   2. (2)

      Lisa Burton;

   3. (3)

      Todd Cooper Saunders;

   4. (4)

      Constable Bradley Dudgeon; and

   5. (5)

      Constable Jonathon Marr.

2. [12]

   The reasons why the directions for evidence to be given by AVL link from Nowra Courthouse for three of the witnesses are sought are that Ms Plumpton has childcare and work commitments, Ms Burton has work commitments for her single income household and a round trip to Wollongong would take 3 hours, and Mr Cooper Saunders has a baby born yesterday and has childcare commitments. As to Cons Dudgeon and Cons Marr it is proposed that they give their evidence from Narooma CAS office. They both live and work approximately 3 hours’ drive south from Wollongong.

3. [13]

   Sections 5A and 5B of the AVL Act relevantly provide:

4. [14]

   Given the terms of s 5B(1), the Court may give a direction for the giving of evidence by AVL from Nowra Courthouse and Narooma CAS office.

5. [15]

   Accepting the well-known widespread availability of the necessary AVL facilities in courthouses throughout New South Wales at which the District Court regularly sits and at CAS offices, I am satisfied that it is not the case that the necessary facilities are unavailable or cannot reasonably be made available in respect of any of the witnesses.

6. [16]

   In light of the information concerning why it would be difficult for each witness to attend court in Wollongong, I am satisfied that it is not the case that the witnesses’ evidence could more conveniently be given in the Courtroom where the Court is sitting. Furthermore, since the directions are not opposed by any party and in all the circumstances, I am not satisfied that a direction for the evidence to be given by AVL would be unfair to any party.

7. [17]

   There is no basis in the evidence or otherwise for me to conclude that any of the persons in respect of whom the direction is sought will not give evidence.

8. [18]

   Furthermore, there is no party opposing these witnesses giving evidence by AVL link from Nowra Courthouse, and thus section 5B(3) is not engaged in the present case.

9. [19]

   In my view, it is appropriate to make the direction sought in respect of the evidence of the witnesses identified.

10. [20]

    To the extent that there are any relevant costs of arranging the relevant AVL link, the Office of the Director of Public Prosecutions is prepared, and has undertaken, to meet those costs.

11. [21]

    For these reasons the orders and directions of the Court are:

    1. (1)

       Pursuant to section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), as appropriate, evidence be taken from the following witnesses via audio visual link;

12. [22]

    The Court notes the undertaking given on behalf of the Office of the Director of Public Prosecutions to meet the costs of arranging the relevant AVL links.