R v Eriksen (No 5)

Legislation Cited: Evidence Act 1995 (NSW)

Cases Cited: R v Burton [2013] NSWCCA 335
R v Clark [2001] NSWCCA 494; 123 ACrim R 506
R v Eriksen (No 3) [2025] NSWSC 562
Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37
R v Singh (No 4) [2021] NSWSC 75
Severino v R [2017] NSWCCA 80
Wilson v R (1970) 123 CLR 334

Category: Procedural rulings

Parties: The King (Crown)
Anthony Eriksen (Accused)

Representation: Counsel:
D Boyle & P Mulvihill (Crown)
Self-Represented (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Self-Represented (Accused)

File Number(s): 2023/00113797

JUDGMENT

Background

1. Anthony Eriksen (“the accused”) is charged with the murder of Lisa Fenwick (“the deceased”). It is alleged the murder occurred on 9 April 2023 at the unit the accused shared with the deceased in Mascot, New South Wales.

2. The trial of the matter commenced on 10 June 2025. The accused appears, by choice, unrepresented at trial.

3. The Crown now seeks to tender evidence from Senior Constable Anthony Smith of a conversation he had with the accused on the night of 9 April 2023, following his arrest, at Mascot Police station. That conversation was in the context of SC Smith preparing to undertake forensic procedures on the accused. As is required, the warnings about the forensic procedures, a caution as to the right to silence and request for consent to conduct the forensic procedures and the accused’s consent to record those procedures, were all video recorded. That recording was played to the jury [1] and the transcript is MFI 30.

4. The accused, as was his right, declined to have the forensic procedures themselves recorded. [2] During those procedures, he had a conversation with SC Smith. SC Smith gave evidence at the hearing of the conversation. He gave evidence of a conversation with the accused at 12:30am on 10 April.

5. SC Smith’s evidence was:

“… So we were going through the forensic procedure process. It was a timely process. It would have been about halfway through, where Mr Eriksen was situated on a seat, sitting down with his- just feet on the ground and Crime Scene were laying out rulers and setting up ready to take photos, and I was just sitting off to the side of the room while they were carrying out that procedure for stop he spoken, well, directed it towards the crime scene officers, just saying, “Is Lisa OK?”, and they didn’t know too much about it because they just come straight there to do the forensic procedure, so they didn’t respond. And then when there was no response Mr Eriksen asked, “Is Lisa dead?” And they didn’t respond again. They looked at me and I just replied saying “Yes, she’s passed away”….

…And then he made the comment, “There have been issues for seven to nine months.” … [3] “

6. He then was given leave to refresh his memory as to the conversation as recorded in his police notebook. Relevantly, he said that after he told the accused Ms Fenwick had passed away, the accused said to him:

“There have been issues for the past seven to nine months.” [4]

7. The Crown seeks to rely on this conversation, particularly the last comment by Mr Eriksen, as further relationship evidence. The Crown says it is also relevant to the mental element of the murder charge, namely the accused’s intention at the time he stabbed the deceased.

8. The accused objected to the evidence.

9. I allowed the evidence to be admitted. These are my reasons for doing so.

Is the evidence relevant and admissible?

10. After a hearing on 15 May 2025, I made pre-trial rulings dealing with the admissibility of evidence going to the relationship between the accused and the deceased. I provided my reasons on 2 June 2025; see R v Eriksen (No 3) [2025] NSWSC 562 (“Eriksen No 3”).

11. In those reasons, I set out the issues at the principles dealing with the relevance of relationship evidence (see [25]-[26]) by reference to R v Singh (No 4) [2021] NSWSC 75 and Wilson v R (1970) 123 CLR 334.

12. I do consider that the evidence of SC Smith is relevant as going to the relationship between the deceased and the accused. It gives context to the event which led to the death of the deceased, including the “argument” that the accused said he had with her as referenced on the triple-zero call he made at 6:04 pm on 9 April 2023 (see [11] of Eriksen (No 3)).

13. The Crown also wish to use it to shed light on the accused’s state of mind at the time he stabbed the deceased. The accused has previously admitted he stabbed the deceased. He denies he had the intention to kill her or cause grievous bodily harm (“GBH”).

14. The Crown relied on R v Clark [2001] NSWCCA 494; 123 ACrim R 506 where at [137]-[138] Heydon JA (Bell J agreeing, Dowd J disagreeing in part) said:

“137 The relationship was capable of casting light on whether the appellant killed the deceased, and, if he killed the deceased, what his mental state was: R v Hissey (1973) 6 SASR 280 at 289. The existence of a bad relationship increased the chance of a relaxation of normal inhibitions against killing. It thereby offered a potential explanation for any criminal conduct by the appellant. It established “an atmosphere which would render it less unlikely that the offence charged would have been committed in the circumstances which arose on the occasion of [the accused’s drive with the victim], having regard to the past relationship of the principals”: R v Garner (1963) 81 WN (Pt 1) (NSW) 120 at 129 per Maguire J. …

138…Even though the relationship evidence was not tendered as going directly to motive, an evaluation of the motive issue and an evaluation of the probabilities in relation to whether the appellant killed the deceased, after a sudden quarrel or otherwise, would be carried out less realistically if there were an exclusion of all evidence of the bad terms existing between the appellant and the deceased. Evidence of a hostile relationship would enable the jury to draw adverse inferences from the circumstantial evidence pointing to the appellant’s guilt; evidence of a good relationship, foreshadowed by the appellant in his records of interview and actually given in the witness box, would cause them to hesitate in doing so.”

15. The Crown submitted that when looked at with the other relationship evidence already admitted, and the evidence of the issues in the relationship given by the accused himself in his call to MensLine [5] and Family and Community Services (“FACS”) on 11 February 2023, [6] the statement by him on the night the deceased died that there had been issues in the past for about “seven to nine months” shows that those relationship issues continued up until her death. Further, it is different from the relationship evidence comprising texts from the deceased to others, as this statement comes from the accused himself.

16. The Crown submits the evidence is also an implied admission by the accused that he killed the deceased as a result of the argument he had with her. It submits that this admission is implied by his comment about there having been issues in his relationship with the deceased having come immediately after, and in response to, him learning that she had died. The Crown submitted that the immediacy of this response indicates in the accused’s mind there was a link between the death of Ms Fenwick and the poor state of their relationship.

17. The accused had also indicated that he intended to rely on the defence of automatism in that he was sleepwalking at the time he stabbed the deceased. If that is established, he would not have been acting deliberately or voluntarily at the time he stabbed the deceased and would be entitled to be acquitted simpliciter. He has been told that, presently, as there is no evidence of him being asleep and, assuming he gives evidence that he was asleep, no independent medical evidence with respect to that condition, that defence will not be left to the jury. I deal with this issue in a separate judgment.

18. At the time the issue of the admission of SC Smith’s evidence was debated however, no final decision on the issue of automatism could be made as the evidence had not closed and it was unclear what evidence, if any, the accused would finally lead with respect to it. If automatism is ultimately left to the jury, then the Crown submits that SC Smith’s evidence would also be relevant. That is because there is no reference in what he said to SC Smith (or at all in the triple-zero call or other conversations with police officers on the night the deceased died) to him being asleep, sleepwalking or otherwise acting in a state of automatism. Such evidence may include reference to him having been asleep and waking to find the deceased lying on the floor with multiple stab wounds.

19. If the accused did give evidence that he was asleep, or in some other state of semi-consciousness at the time of the stabbing, this on its own could not meet the evidentiary onus of the defence of automatism. It could however, go to whether he had at that time, the intention to kill the deceased, or cause GBH.

20. The Crown submits that the evidence is relevant and probative. It submits it does not matter that there may be competing inferences available from that evidence. The actual probative value to be assigned to the evidence is a matter for the jury and in any event, cannot be assessed until all of the evidence is complete: R v Burton [2013] NSWCCA 335 at [157] (“Burton”). Further, the trial judge must assess the probative value of the evidence on the basis that it will be accepted as reliable and credible, that is at its most favourable to the tendering party: Burton at [162].

Consideration

21. I accept the Crown submissions that the evidence is relevant as relationship evidence. It is relevant to put context into the events of 9 April. The fact that there had been “issues” in the relationship and that it became fractured, is relevant to whether the question of whether the accused murdered his former partner.

22. In particular I accept that taken at its highest, for the reasons identified by the Crown, it may be relevant to whether the stabbing of the deceased was related to the argument between her and the accused that the accused admitted to in the triple-zero call and to attending police officers. It is also relevant to his state of mind at the time he stabbed the deceased, that is, his intention.

23. Additionally, if evidence is adduced such that automatism is left to the jury, I accept that the Crown could use this evidence, together with other evidence already before the jury, to rebut any inference that there was a possibility that the accused was not acting voluntarily at the time he stabbed the deceased.

Should the evidence be excluded?

24. The question arises as to whether there are any grounds on which the evidence must, or ought in the exercise of the Court’s discretion, be excluded.

Relationship evidence – ss 135 and 137 Evidence Act 1995 (NSW)

25. As mentioned, one of the bases that the evidence is deployed by the Crown is as relationship evidence. In Eriksen No 3 which addressed the admissibility of other relationship evidence, I did not expressly deal with whether that evidence should be excluded either under s 135 or s 137 of the Evidence Act 1995 (NSW) (“EA”). The Crown did make submissions about this issue. [7] The transcript of the pre-trial hearing indicates that I did turn my mind to the possible prejudice caused to the accused by admission of the evidence I was there dealing with when indicating the ruling I proposed to make. [8]

26. As with the evidence with which this judgment deals, I did conclude that the relationship evidence I dealt with there should not be excluded under s 135 or s 137 of the EA. I do not consider that the probative value of the relationship evidence is outweighed by the danger of unfair prejudice to the accused. The relationship evidence has high probative value detailing the issues in the relationship between the deceased and accused in the months before and up to the death of Ms Fenwick. It details the accused’s financial dependence on the deceased and that she wanted him to move out of the unit they shared.

27. The relationship evidence is not unfairly prejudicial merely because it may make it more likely that the accused will be convicted. The relevant prejudice caught by these sections is unfair prejudice because there is a real risk that the evidence will be misused by the jury in some unfair way; Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 at [91] per McHugh J.

28. To reduce any prejudice, directions as to the use of the evidence would be made to the jury. That use is to put in context the events of 9 April 2023 having regard to the evidence of the relationship between the accused and the deceased and the fact it had irretrievably broken down resulting in arguments between them. I do not consider that there is a real risk that the jury will use the relationship evidence in an unfair way.

29. I do not consider the relationship evidence must be excluded under s 137 or ought to be excluded under s 135.

The statement as an implied admission

30. In so far as the Crown submits that the statement by Mr Eriksen to SC Smith may be considered an implied admission (as described above), s 85 of the EA may apply to exclude that admission. That section provides:

85 Criminal proceedings: reliability of admissions by defendants

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant—

(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or

(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

…

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account—

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and

(b) if the admission was made in response to questioning—

(i) the nature of the questions and the manner in which they were put, and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

31. I do not consider this section applies such that the evidence of what was said to SC Smith is inadmissible. Whilst it is the case that the statement was made to SC Smith who was one of the police performing a function in connection with the investigation of the death of Ms Fenwick and whether the accused had murdered her, I consider that the circumstances in which the statement was made were such as to make it unlikely that the truth of the statement was adversely affected.

32. In Severino v R [2017] NSWCCA 80 the Court (Payne JA, Campbell and Wilson JJ) and said at [66]-[67]:

“66 The question posed by s 85 is the unlikelihood, or otherwise, that the circumstances in which the admission was made adversely affected the truth of the admission: R v Douglas [2000] NSWCCA 275 (Mason P, Sully and Sperling JJ agreeing). Whether an admission was in fact made or whether an admission was actually true or untrue are matters for the tribunal of fact (unless the defence raises truth or untruth as an issue): s 189(3), see R v Esposito (1998) 45 NSWLR 442; (1998) 105 A Crim R 27; R v Ul-Haque (2007) 177 A Crim R 348; [2007] NSWSC 1251 at [102].

67 Section 85(3) makes it clear that the range of circumstances relevant for the purposes of s 85(2) include the physical and mental characteristics of the interviewee: R v Clarke (1997) 123 A Crim R 506; [2001] NSWCCA 494; R v Phan (2001) 35 NSWLR 480; (2001) 123 A Crim R 30; [2001] NSWCCA 29.”

33. It is plainly a matter for the jury whether the statement made to SC Smith that there had been issues in the relationship with the deceased, made immediately after learning of her death, is an implied admission as the Crown contends. The circumstances in which that statement was made were that the accused was undergoing forensic procedures. He had been asked if he wanted to consult a lawyer and said he could not afford one. The police offered for him to call Legal Aid, which he declined saying: “It doesn’t matter”. He consented to the forensic procedures but he did not consent, as was his right, to those procedures being recorded. He declined to exercise his right to have a person independent from the investigation present whilst the forensic procedures were carried out. That caution and explanation of the procedures and the accused’s consent were video recorded. [9]

34. Whilst he appeared upset at the situation he was in and said that he loved the deceased and “just don’t know what happened”, the accused appeared rational and was able to understand what was being said. He exercised his right not to have the forensic procedures recorded or an independent person be present when they were carried out. He acknowledged that he understood the caution. He said in response to the caution: “Sure. I don’t really care. Fuck. Whatever happens, happens”. The recording was then turned off and he asked whether Ms Fenwick was alright. He was told she was dead. He volunteered the statement about issues in their relationship for the past 7-9 months – it was not a response to a question by SC Smith. What he said then was consistent with what he had said to MensLine and FACS when he had called them on 11 February 2023. He had in those conversations, described problems in the relationship with the deceased. The deceased had described to others that the relationship had irretrievably broken down.

35. I consider the circumstances in which the statement was made were such as to make it unlikely that the truth of it was adversely affected.

36. Similarly, I do not consider that I should exercise my discretion to exclude the evidence under s 90 of the EA. For the reasons I have just expressed, I do not consider it would be unfair to the accused for the prosecution to use, or ask the jury to use, the statement he made to SC Smith as an implied admission.

37. It is for these reasons that I allowed the evidence to be admitted.

**********

Endnotes

Ex X.

see MFI 30 at p.1.

Tcpt, 18 June, 513.1-23.

Tcpt, 18 June, 514.23.

Ex K.

Ex L.

see MFI VD9 [45]-[48].

Tcpt, 15 May 2025, 137.50- 138.17.

Ex X.