R v Cahill (No. 2)

1. [1]

   JOHNSON J: The Accused, Cathrina Ann Cahill, stands charged that between 17 and 18 February 2017 at Padstow in the State of New South Wales she did murder David Walsh. The trial of the Accused is to commence on 22 October 2018.

Pretrial Applications

1. [2]

   In advance of the trial, a number of applications have been made on behalf of the Crown and the Accused:

2. [3]

   The hearing of the pretrial applications proceeded on 8 October 2018. A range of documentary material was tendered by the Crown (Exhibit A) and the Accused (Exhibits 1-5) with respect to the applications. Written submissions were made by the Crown and the Accused concerning these applications, with counsel making additional oral submissions at the hearing on 8 October 2018.

The Crown Case Against the Accused

1. [4]

   The following is drawn from the Crown Case Statement (Exhibit A, Tab 1).

2. [5]

   As at 17 February 2017, the Accused was 25 years of age and Mr Walsh was 29 years of age. Both were Irish nationals residing in Australia on working holiday visas. Mr Walsh had come to Australia in 2012 and the Accused in 2014.

3. [6]

   The Accused and Mr Walsh knew of each other from Ireland, but met in Australia at a hotel in Bondi Junction. They commenced an intimate relationship in late 2014 and became engaged to be married on New Year’s Eve in 2016.

4. [7]

   As will be seen, the relationship between the Accused and Mr Walsh between 2014 and 2017 may be described fairly as a volatile one, marked by incidents of violence on both sides of the relationship.

5. [8]

   The Accused was living in Randwick when she started the relationship with Mr Walsh. She returned to Ireland over Christmas 2014 and Mr Walsh moved into her room. When she returned to Australia they moved into an apartment at Dalmeny Avenue, Rosebery.

6. [9]

   Isobel Jennings and her boyfriend, Jonah Summers, met the Accused and Mr Walsh around July 2015 when they responded to an advertisement on “Gumtree” and moved into the Rosebery address with them.

7. [10]

   In September 2015, the Accused and Mr Walsh moved into a four-bedroom house in Blaxland Street, Matraville. Ms Jennings and Mr Summers moved with them. The Accused and Mr Walsh shared one bedroom and other people including Amy O’Shaughnessy, Orla McCabe, Kerry Swan, Niall McKendry, Grace Keegan and Zoe O’Dwyer Kelly also resided there at various times.

8. [11]

   As at 17 February 2017, the Accused and Mr Walsh were living together with other Irish nationals, Melissa Sinnott and Grace Keegan, at 85 Watson Road, Padstow. Ms Sinnott and Ms Keegan had each known the Accused for a number of years and were good friends with her. On 30 January 2017, the Accused, Mr Walsh, Ms Keegan and Ms Sinnott entered into a residential tenancy agreement for the premises at 85 Watson Road, Padstow and they moved into those premises around that time.

9. [12]

   The Crown written submissions on the tendency application (Exhibit A, Tab 3) contain a summary of the events alleged to have occurred on 17 and 18 February 2017 giving rise to the charge of murder. This part of the Crown submission (paragraphs 12-31) was distilled from the Crown Case Statement and it will suffice for present purposes:

Issues in the Trial

1. [13]

   There is no issue at the trial that the Accused stabbed Mr Walsh once to the neck in a manner which caused his death.

2. [14]

   Mr Trevallion, counsel for the Accused, informed the Court that there were areas of controversy surrounding the narrative of events at the time of the stabbing. He submitted, in particular, that the statements of Ms Keegan and Mr Hyde indicated that Mr Walsh’s aggression was continuing at the time when Ms Keegan was attempting to restrain Mr Walsh (T42, 8 October 2018).

3. [15]

   The Defence Response for the purpose of s.143 Criminal Procedure Act 1986 dated 2 September 2018 gave notice that the Accused would rely upon the following defences or partial defences at trial:

4. [16]

   The Court was informed that it was as a consequence of the issues raised in the Defence Response that the Crown now relies upon the Amended Tendency Notice dated 19 September 2018 (T35, 8 October 2018).

5. [17]

   In support of the partial defence of substantial impairment, the defence has served upon the Crown a report of Dr Stephen Allnutt, psychiatrist, dated 11 December 2017. Put shortly, Dr Allnutt states that upon the basis of the Accused’s account of a history of abuse of her by Mr Walsh, she suffered from an underlying condition (post-traumatic stress disorder) which, putting aside intoxication, caused an abnormality of mind (an increased propensity to react aggressively) which would have undermined the capacity of the Accused to control her actions at the time of the killing. Dr Allnutt concluded his report in the following way:

6. [18]

   In response to an enquiry by the Court, counsel for the Accused said that the conduct of Mr Walsh which constituted a serious indictable offence for the purpose of extreme provocation (s.23A(2)(b)) was the assault by Mr Walsh upon Mr Hyde although that aspect remained under consideration (T41-42, 8 October 2018).

Relevant Provisions of Evidence Act 1995

1. [19]

   It is appropriate to set out relevant statutory provisions and principles before moving to the determination of the applications.

2. [20]

   Several provisions of the Evidence Act 1995 have application to the present pretrial applications. Sections 55 and 56 Evidence Act 1995 state:

3. [21]

   Section 97 Evidence Act 1995 provides:

4. [22]

   Section 101 of the Act states:

5. [23]

   Sections 135 and 137 Evidence At 1995 state:

Principles to be Applied on Admissibility Issues

1. [24]

   The tendering party bears the onus of establishing, on the balance of probabilities, any facts necessary for deciding that the evidence should be admitted: s.142 Evidence Act 1995.

2. [25]

   Consideration of relevance requires identification of the fact or facts in issue in the trial. Here, there is no dispute that the Accused stabbed Mr Walsh thereby causing his death. The principal issues in dispute concern the events occurring immediately before and at the time of the stabbing, the state of mind of the Accused at that time and the associated issues of self-defence, extreme provocation and substantial impairment.

3. [26]

   The test of relevance is a relatively undemanding one. The enquiry for the purpose of s.55 concerns how the evidence might affect findings of fact. The possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at 313 [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at 312 [39].

4. [27]

   Evidence which is relevant according to s.55 and admissible under s.56 is, by definition, probative. But neither s.55 nor s.56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some (even slight) probative value will be prima facie admissible: IMM v The Queen at 312 [40].

5. [28]

   Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at 306 [15]. Section 137 requires the “probative value” of the evidence to be weighed against the danger of unfair prejudice to the Accused. This requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue: IMM v The Queen at 314 [47].

6. [29]

   The danger of “unfair prejudice” in s.137 Evidence Act 1995 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact (usually a jury) so that the jury may not comply with judicial directions as to its use: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at 325 [91]; R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 at 582-584 [163]-[165]; The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40 at 866-867 [73]. There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: BJS v R (2013) 231 A Crim R 537; [2013] NSWCCA 123 at 549-550 [51].

7. [30]

   The existence of competing inferences (or alternative interpretations), available to be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s.137: R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 at 280 [196].

8. [31]

   Rulings with respect to evidence tendered for non-tendency purposes will require application of these principles concerning relevance and s.137 of the Act.

9. [32]

   Subject to some additional evidence tendered as relationship evidence, the Crown tenders the same body of evidence as tendency evidence and relationship evidence. If evidence is admissible for a non-tendency purpose, it cannot be used for tendency purposes unless the requirements of s.97 and s.101 are met: s.95 Evidence Act 1995.

10. [33]

    No issue was raised in this case concerning compliance by the Crown or the Accused with the reasonable notice requirement. Accordingly, s.97(1)(a) need not be further addressed.

11. [34]

    Tendency evidence is a species of circumstantial evidence: Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 at 277 [356]. Elsewhere in Elomar v R, it was said at 278 [359]:

12. [35]

    In Elomar v R, the Court of Criminal Appeal said at 260 [253]:

13. [36]

    The Court of Criminal Appeal continued in Elomar v R at 278 [360]:

14. [37]

    “Significant probative value” means the capacity rationally to affect the assessment of the probability of the existence of a fact in issue to a significant extent: Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20 at 61 [16]. The evidence must be influential in the context of fact finding: IMM v The Queen at 314 [46].

15. [38]

    It is not necessary that tendency evidence bear a "striking similarity" or "underlying unity" with facts in issue in order to have significant probative value. The requisite degree of similarity between the tendency and charged conduct will depend upon the circumstances of the case: Hughes v The Queen at 65-66 [39]-[40].

16. [39]

    The majority (Kiefel CJ, Bell, Keane and Edelman JJ) in Hughes v The Queen observed at 66 [41]):

17. [40]

    In considering the probative value of evidence under s.97(1)(b), an assumption of the jury’s acceptance of the evidence must be made. No question of the credibility or reliability of the evidence can arise: IMM v The Queen at 315 [52]; The Queen v Bauer at 865 [69].

18. [41]

    As the terms of s.97(1)(b) make clear, an assessment of whether the evidence has “significant probative value” is not confined to the evidence itself, but is to be made having regard to all the evidence sought to be adduced by the tendering party (the Crown): BC v R [2015] NSWCCA 327 at [82]-[83]. What must be assessed is the role that the evidence, if accepted, would play in the resolution of the disputed fact - its capacity to contribute to that resolution: DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9 at 774 [72]; BC v R at [83].

19. [42]

    In IMM v The Queen, the High Court said at 313 [45]:

20. [43]

    Application of the “significant probative value” test calls for a focus on the fact in issue, the probability of the existence of which the evidence is said to cast light.

21. [44]

    Generally, a court is not required to assess the risk of joint concoction as part of the test in s.97(1)(b). Provided the evidence is rationally capable of being accepted by the jury, the possibility of contamination, concoction or collusion should be assessed by the jury as part of its assessment of factors that may affect the credibility and reliability of the evidence: The Queen v Bauer at 865-866 [69]-[70].

22. [45]

    There is no requirement under the Evidence Act 1995 that an accused person’s tendency must be proved beyond reasonable doubt: The Queen v Bauer at 869 [86].

23. [46]

    The second step, being a s.101(2) assessment, calls for consideration of probative value and prejudicial effect to determine whether the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the Accused.

24. [47]

    In DAO v R [2011] 81 NSWLR 568; [2011] NSWCCA 63 at 597 [150], Simpson J observed that the term “prejudicial effect” in s.101(2) is a reference to evidence being used against an accused person for a purpose other than that for which it is admitted.

25. [48]

    In relation to the test in s.101(2) Evidence Act 1995, the Court noted in Hughes v The Queen at 61 [17]:

26. [49]

    Despite textual differences between the expressions “prejudicial effect” in s.101, “unfairly prejudicial” in s.135 and “unfair prejudice” in s.137, each conveys essentially the same idea of harm to the interests of the accused person by reason of a risk that the jury will use the evidence improperly in some unfair way: The Queen v Bauer at 866-867 [73].

27. [50]

    When considering s.101(2), it is appropriate to take into account the “ameliorating effect" of any directions: DAO v R at [172].

28. [51]

    Evidence may be relevant to the state of mind of an accused person, but not as tendency evidence. In Elomar v R, the Court of Criminal Appeal said at 280 [369]:

29. [52]

    Simply because evidence concerns the relationship between the Accused and Mr Walsh does not mean that it is necessarily admissible. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context: Norman v R [2012] NSWCCA 230 at [33].

30. [53]

    In R v Clark, Heydon JA (at 553-556 [87]-[109]) considered the admissibility of relationship evidence in a criminal trial. Heydon JA referred at 562-563 [101] to the judgment of Howie J in R v Toki (No. 3) (2000) 116 A Crim R 536; [2000] NSWSC 999 as a decision where his Honour had “usefully surveyed” the authorities in this area. Howie J said at 540-541 [23]-[30]:

31. [54]

    In R v Merrick (No. 2) [2016] NSWSC 164, Wilson J said at [97]:

The Crown’s Amended Tendency Notice

1. [55]

   The Crown’s Amended Tendency Notice dated 19 September 2018 (Exhibit A, Tab 2) identifies the relevant tendencies of the Accused in the following way:

2. [56]

   The Crown tendency application relates to separate incidents on 3 October 2015 and 12 November 2015.

3. [57]

   The Crown Case Statement summarised the incident of 3 October 2015 in the following way (paragraphs 12-23):

4. [58]

   The Crown application to adduce tendency evidence concerning the 3 October 2015 incident foreshadowed evidence to be given by Isobel Jennings and Jonah Summers.

5. [59]

   The Crown Case Statement summarised the incident on 12 November 2015 in the following way (paragraphs 24-43):

6. [60]

   The Crown application to adduce tendency evidence concerning the 12 November 2015 incident foreshadowed evidence to be given by Isobel Jennings, Jonah Summers, Amy O’Shaughnessy, Orla McCabe, Constable Sophie Power, Constable Rebecca Schofield, Constable Lauren Kelly, Joe Doran and parts of the ERISP with the Accused dated 13 November 2015, medical records concerning Mr Walsh’s injuries and a NSW Police Fact Sheet dated 13 November 2015.

Submissions of the Parties Concerning the Crown Tendency Application

1. [61]

   With respect to the incident of 3 October 2015, the Crown pointed to the following features:

2. [62]

   The Crown submitted that evidence of the incident on 3 October 2015 was compellingly similar to the charge that the Accused presently faces (for reasons set out at [61] above) and had significant probative value.

3. [63]

   The Crown submitted that the proposed tendency evidence arising from the incident on 3 October 2015 showed that the Accused was not acting in self-defence at the time of that stabbing and that she left Mr Walsh (with whom she had been arguing) to retrieve a kitchen knife from the downstairs kitchen before returning voluntarily to the location where Mr Walsh was sitting holding his head crying.

4. [64]

   The Crown submitted that the Accused concealed the knife behind her back with this giving rise to an inference that, now armed with the knife, she did not want either Mr Walsh or Ms Jennings to see it. The Crown asserted that this was indicative of the Accused acting clearly and being in control of her actions and aware of their wrongfulness.

5. [65]

   The Crown submitted that the Accused chose the same weapon (a long-bladed kitchen knife) on 3 October 2015 and the night of the killing of Mr Walsh on 17-18 February 2017.

6. [66]

   The Crown noted that the Accused was entreated to leave the scene by her housemate and cautioned to desist from assaulting Mr Walsh on both occasions. However, it is said that the Accused ignored this advice and continued with her approach to Mr Walsh on both occasions. On 3 October 2015, Ms Jennings suggested to the Accused that they go outside to have a smoke and urged her to “chill”. On the night of the alleged murder in February 2017, both Ms Keegan and Ms Sinnott urged the Accused to stop what she was doing, but (it is alleged) the Accused ignored her friends’ entreaties.

7. [67]

   The Crown submitted that, on both occasions, the Accused chose a vulnerable part of Mr Walsh’s anatomy (being the head and neck area) to inflict the injuries.

8. [68]

   The Crown submitted that the events of 3 October 2015 indicate that the Accused was not acting in self-defence and was in control of her actions on that occasion. It was submitted that the tendency evidence concerning 3 October 2015 bore upon the facts in issue in the trial, particularly the significantly contested facts that the Accused was the aggressor who was in control of her actions and not acting in self-defence with respect to the charge of murder.

9. [69]

   As to the incident on 12 November 2015, the Crown pointed to the following features:

10. [70]

    With respect to the events on 12 November 2015, the Crown submitted that the proposed tendency evidence was compellingly similar to the murder charge brought against the Accused and had significant probative value.

11. [71]

    The Crown submitted that the incident on 12 November 2015 was witnessed by Ms Jennings, Mr Summers, Amy O’Shaughnessy and Orla McCabe. In addition, it was submitted that the proposed tendency evidence includes evidence from New South Wales police officers who were called to investigate the matter and who were involved in charging the Accused with inflicting grievous bodily harm on Mr Walsh. The proposed tendency evidence includes the ERISP in which the Accused participated with police concerning the 12 November 2015 incident.

12. [72]

    Of the five features referred to earlier (at [69]), the Crown submitted that four out of five of those circumstances were replicated almost identically in the events surrounding the murder charge in February 2017. Save for the choice of weapons, the Crown submitted that the circumstances were almost identical.

13. [73]

    The Crown submitted that the tendency evidence with respect to 12 November 2015 bears upon the facts in issue in the trial, particularly the significantly contested facts that the Accused was the aggressor, that she was in control of her actions and not acting in self-defence with respect to the murder.

14. [74]

    The Crown submitted that the risk of contamination or joint concoction in this matter is very slim and almost negligible, especially as far as the evidence of the eye witnesses is concerned. It was submitted that each witness made their initial police statements very proximate in time to the incident of 12 November 2015 with Ms McCabe and Ms O’Shaugnessy not being witnesses to the 3 October 2015 event.

15. [75]

    The Crown submitted that the probative value of the proposed tendency evidence substantially outweighs any prejudicial effect it may have on the Accused. It was submitted that the evidence is compelling in its capacity to support the account of the witnesses with respect to the events surrounding the charge of murder in February 2017, in particular to the issues of self-defence and loss of control.

16. [76]

    The Crown submitted that the risk that the jury would misuse the evidence in a way logically unconnected with the purpose of its tender is small. It was noted in this respect that the Accused had been convicted of an offence arising from the 12 November 2015 incident.

17. [77]

    The Crown submitted that the proposed tendency evidence ought be admitted in relation to the charge of murder for which the Accused is to stand trial.

18. [78]

    Mr Trevallion, noted that much of the evidence which the Crown seeks to rely upon for tendency purposes will be admissible in the trial for other purposes, but he submits that parts of the evidence ought not be admitted at all and that the Crown should not be entitled to rely upon any of this material for tendency purposes.

19. [79]

    It was submitted for the Accused that the proposed tendency evidence did not have significant probative value (s.97(1)(b) Evidence Act 1995) and, in any event, ought not be admitted on the basis that the probative value of the evidence did not substantially outweigh any prejudicial effect it may have on the Accused (s.101(2) Evidence Act 1995).

20. [80]

    Mr Trevallion submitted that the alleged tendencies were expressed by the Crown in very general terms in a manner which undermined a conclusion that the evidence had significant probative value.

21. [81]

    Counsel for the Accused submitted that there was a lack of contemporaneity between the incidents relied upon by the Crown for tendency purposes and the incident in which Mr Walsh died. He pointed to the passage of time of 14 to 16 months between the events in October and November 2015 and the killing of Mr Walsh in February 2017. In circumstances where, despite the problems in October and November 2015, the Accused and Mr Walsh became engaged to marry in December 2016, it was submitted that evidence concerning the earlier events could not satisfy the demanding test for admissibility for tendency purposes with respect to the Accused’s state of mind.

22. [82]

    With respect to the evidence of the Accused saying on an earlier occasion that she wished to kill Mr Walsh, it was submitted that this was the type of statement which might be made idly in the course of a tense domestic relationship without an intent to so act so that this evidence lacked substantive probative value.

23. [83]

    Further, by reference to s.101(2) and relying upon R v Watkins (2005) 153 A Crim R 434; [2005] NSWCCA 164 at 443-44 [49]-[51], Mr Trevallion submitted that evidence concerning the Accused’s stabbing of Mr Walsh with a knife in October 2015, and committing an offence against him in November 2015 for which the Accused was convicted, would give rise to the significant risk that the jury would be diverted from a proper consideration of the evidence of events on 17-18 February 2017 at the trial by giving undue weight to these earlier features, one of which had given rise to a criminal conviction.

24. [84]

    Whilst acknowledging that a great deal of the evidence concerning the relationship between the Accused and Mr Walsh would come before the jury as relationship evidence and also because of the Accused’s reliance upon the partial defences of substantial impairment and extreme provocation, it was submitted that proposed tendency evidence ought not be admitted.

Defence Tendency Application

1. [85]

   The Amended Tendency Notice dated 4 October 2018 relied upon by the Accused asserts that Mr Walsh had a tendency:

2. [86]

   Mr Trevallion submitted that the facts in issue that the tendency sought to be proved is relevant is whether it is reasonably possible:

3. [87]

   Much of the evidence upon which the Accused seeks to rely in this respect will, it was conceded by the Crown, be before the jury in any event as relationship evidence or as evidence relating to the facts in issue concerning events on 17-18 February 2017. Evidence in this category includes the statement of Richard Lindsay dated 16 March 2017, the statement of Matthew Hyde dated 18 February 2017, the statement of Isobel Jennings dated 17 March 2018, the ERISP of the Accused dated 18 February 2017, parts of the statement of Grace Keegan dated 18 February 2017, the statement of Melissa Sinnott dated 18 February 2017 and text messages and calls on the telephones of the Accused and Mr Walsh with respect to the evening of 17 February 2017.

4. [88]

   In addition, the Crown accepted that evidence of events surrounding the issue of an apprehended domestic violence order on 14 September 2015 and the apprehended violence order dated 22 September 2016 would be in evidence before the jury.

5. [89]

   However, the Crown opposes the defence application to rely upon any of this material for tendency purposes.

6. [90]

   The Crown submitted that the suggested tendency evidence lacks significant probative value and did not relate to the facts in issue. It was part of the Crown case that Mr Walsh acted aggressively towards Mr Hyde on 17-18 February 2017 so that there was no controversy or dispute to which the suggested tendency evidence could attach.

7. [91]

   In a separate category are the statements of Caroline O’Brien dated 13 March 2018 (Exhibit 4) and Kevin Killeen dated 1 October 2018 (Exhibit 5). These statements relate to the alleged tendency at [85](c) above.

8. [92]

   Ms O’Brien was in a relationship with Mr Walsh for about 10 years in Ireland and they had three children together, the first child being born when they were both about 16 years old. The events referred to in her statement occurred up to the mid-2000s. Ms O’Brien states that her relationship with Mr Walsh was good at the start, but they commenced to argue and there were incidents of violence on his part. They separated and then got along better as a couple. No details of alleged abuse by Mr Walsh is contained in the statement.

9. [93]

   Mr Killeen is the father of Niamh Killeen, who had been in a relationship with Mr Walsh for about two years before he left Ireland to come to Australia. Mr Killeen states that he was approached by members of the Garda (Irish Police) because of complaints by his daughter about Mr Walsh. Police wished Mr Killeen to use his influence to have Niamh end her relationship with Mr Walsh. Mr Killeen does not state that he observed any abusive conduct by Mr Walsh against his daughter.

10. [94]

    The Crown submitted that the material from Ms O’Brien and Mr Killeen was remote in time from events relevant to the trial and that the material was expressed vaguely and (with respect to Mr Killeen’s statement) involved second or third-hand hearsay reports. The Crown submitted that the material lacked significant probative value.

The Crown’s Proposed Relationship Evidence

1. [95]

   The Crown submitted that the evidence tendered for tendency purposes should be admitted, in any event, if the Court rejected the Crown tendency argument. In this way, the Crown presented the application to adduce relationship evidence as an alternative submission.

2. [96]

   The Crown seeks to have admitted as relationship evidence the totality of the evidence sought to be tendered for tendency purposes together with certain additional evidence, being evidence of Isobel Jennings (concerning an incident in July 2015), Jonah Summers (concerning the July 2015 incident), Martin Doyle (concerning incidents on 1 January 2017 and late January 2017), Joe Doran (concerning an incident in October-November 2016) together with other parts of the Accused’s ERISP with police dated 13 November 2015.

3. [97]

   The Crown submits that a full picture of the relationship between the Accused and Mr Walsh is appropriately to be placed before the jury, in particular given the foreshadowed reliance by the Accused upon self-defence (or defence of another), extreme provocation and substantial impairment.

4. [98]

   The additional evidence upon which the Crown seeks to rely in this respect involves further incidents of conflict between the Accused and Mr Walsh at different times in 2015, 2016 and early 2017. Mr Trevallion does not object to the bulk of this evidence being admitted as relationship evidence in the trial with specific objections being taken to certain parts under s.135 or s.137 Evidence Act 1995.

Decision Concerning Relationship Evidence

1. [99]

   Although the Crown tenders evidence as relationship evidence as a fall-back position to the tendency argument, I regard these issues as being cumulative rather than alternative aspects. A greater body of evidence is tendered by the Crown as relationship evidence than that relied upon for tendency purposes. If evidence is admitted for tendency purposes as well, that is an additional feature which attaches to those particular pieces of evidence. I will approach the tender of relationship evidence in this way.

2. [100]

   I am well satisfied that the evidence tendered by the Crown should be admitted as relationship evidence based upon principles set out earlier in this judgment.

3. [101]

   I note that there is no real controversy with respect to the application of those principles in this case with the defence accepting that this evidence ought be admitted for that purpose.

4. [102]

   I am satisfied that the evidence to be relied upon as relationship evidence is relevant to issues in the trial and ought not be excluded under s.135 or s.137 Evidence Act 1995.

5. [103]

   Specific objection has been taken by the Accused to particular parts of the evidence which includes statements made by Mr Walsh to other persons where the Crown seeks to rely upon that material as evidence of the truth of the facts. I propose to give the parties an opportunity to address on those specific areas after delivering this judgment.

Decision Concerning the Crown’s Tendency Application

1. [104]

   As I have said, the great bulk of the evidence upon which the Crown seeks to rely for tendency purposes will be admitted in the trial in any event as relationship evidence. However, it remains necessary for the Court to make a ruling as to whether this evidence may be relied upon for tendency purposes as well: s.95 Evidence Act 1995.

2. [105]

   In approaching the application of s.97 and s.101(2) to this case, it is necessary to keep in mind that there will be in evidence at the trial, for one reason or another, virtually the whole picture of the relationship (including acts of violence) between the Accused and Mr Walsh in the period from 2015 to 2017. Unless the whole history of the relationship is in evidence, it is difficult to see how the Accused would be able to rely upon the evidence of Dr Allnutt which asserts that (on the Accused’s account), Mr Walsh had abused her in the relationship over a considerable period of time so that she came to suffer from an underlying condition in the form of post-traumatic stress disorder so as to give rise to substantial impairment under s.23A Crimes Act 1900.

3. [106]

   In relying upon acts of violence allegedly on the part of Mr Walsh towards the Accused over the history of the relationship, it must be relevant and probative for the Court to have as well evidence of acts of violence by the Accused towards Mr Walsh. Mr Trevallion accepted in submissions that it was appropriate that evidence of the relationship be placed before the jury “warts and all” (T48, 8 October 2018).

4. [107]

   The two discrete incidents upon which the Crown seeks to rely in October and November 2015 each have significant features of similarity when it comes to the events on 17-18 February 2017 for which the Accused is to be tried. I accept the submissions of the Crown in this respect.

5. [108]

   In my view, these matters have substantial probative value having regard to the issues in the trial of the Accused which have been communicated by her legal representatives.

6. [109]

   The passage of time between October 2015 and February 2017 does not undermine the probative value of the evidence. Even though the Accused and Mr Walsh became engaged in December 2016, the evidence of events both before and after that date point to a consistently volatile relationship between them.

7. [110]

   I do not accept the defence submission that the tendencies are expressed in terms which are too general to have significant probative value. The tendencies are sufficiently specific and relate directly to the two events on 3 October 2015 and 12 November 2015 upon which the Crown seeks to rely.

8. [111]

   A difficulty with the defence submission that words used by the Accused may be seen as idle (and not genuine) threats to kill Mr Walsh, made in the course of a volatile domestic relationship, is that the Accused actually attacked Mr Walsh on these two occasions. On the Crown case, there were actions of the Accused which accompanied the words.

9. [112]

   With respect to the defence argument based on R v Watkins and s.101(2), I am satisfied in the circumstances of this case that the probative value of these matters substantially outweighs any prejudice to the Accused. It will be necessary for attention to be given to the way in which this evidence will be adduced at the trial so that the issue does not become the subject of repetitive evidence. Appropriate directions may also be formulated to place this evidence in its proper context and to guard against the risk of unfair prejudice.

10. [113]

    Having regard to the principles referred to above, I am well satisfied that the evidence meets the tests in s.97(1) and s.101(2) Evidence Act 1995. I propose to admit it as tendency evidence.

Decision Concerning the Defence Tendency Application

1. [114]

   The great bulk of evidence to be adduced for the Accused with respect to violent acts committed by Mr Walsh in the context of his relationship with the Accused will be before the jury in any event as relationship evidence. Much of that evidence relates to the events on 17-18 February 2017, so that it bears upon the facts in issue and cannot sensibly be understood as tendency evidence.

2. [115]

   With respect to the statements of Ms O’Brien and Mr Killeen, the events referred to there are significantly remote in time from those under consideration in the trial and do not involve the Accused.

3. [116]

   Importantly, there is no detail of alleged conduct of Mr Walsh in Ms O’Brien’s statement. The probative value of the statement is minimal.

4. [117]

   The statement of Mr Killeen is based on hearsay and contains no direct evidence of any conduct of Mr Walsh which has any probative value.

5. [118]

   It is necessary for the Accused to satisfy the requirements of s.97 only, and not s.101(2). I am not persuaded that this evidence has significant probative value in the context of this trial. In forming this view, I have had particular regard to the issues in the trial where there is no issue that the Accused stabbed Mr Walsh in the neck in a manner which led to his death. The issues in the trial concern self-defence (or defence of another), extreme provocation and substantial impairment. In my view, all of these issues involve directly the relationship between the Accused and Mr Walsh in the period when they were together in Australia after 2014.

6. [119]

   I do not propose to allow the Accused to rely upon evidence for tendency purposes as contained in the defence Amended Tendency Notice.

Remaining Issues

1. [120]

   Mr Trevallion objects to particular parts of evidence which will otherwise be before the jury, if the Crown application to adduce evidence for tendency purposes and as relationship evidence succeeds, as it has.

2. [121]

   In particular, objection is taken to some statements allegedly made by Mr Walsh which are contained in statements of persons to whom Mr Walsh is said to have spoken. Mr Walsh, of course, is deceased.

3. [122]

   The hearing on 8 October 2018 focussed on the broader questions of admissibility. Although there were brief passing submissions made concerning application of provisions of the Evidence Act 1995 to statements made by Mr Walsh to others, no detailed submissions were made which would permit informed rulings on these objections. The best way forward is to hear counsel on these particular objections in light of the more general rulings contained in this judgment.

Conclusion

1. [123]

   In summary, for reasons contained in this judgment: