R v Walker

Supreme Court of NSW|2017-07-24|Before: Schmidt J, Ms J

Judgment

Mr Walker has been charged with murdering Linda Locke, his de facto partner of some twenty years, in April 2015. The Crown case is that Ms Locke died as the result of injuries which Mr Walker inflicted, he intending to inflict really serious injury on her, during an episode of violence which was in part observed by neighbours.
Mr Walker gave inconsistent accounts of how Ms Locke came to be injured, both to attending ambulance officers and police on later interview. Whether Mr Walker did any act which substantially contributed to Ms Locke's death, or intended to inflict a really serious injury, are in issue.
The Crown must prove beyond reasonable doubt firstly, that Mr Walker caused the injuries which resulted in Ms Locke's death, excluding as a reasonable possibility that they occurred accidentally. Secondly, that Mr Walker intended to inflict really serious injury upon her.

The parties' cases

The Crown contends that in determining whether any of Ms Locke's injuries were caused by Mr Walker's unlawful act, and if they were, whether they were caused intentionally, evidence as to the following matters is relevant:

The nature of the relationship. Was the relationship harmonious or volatile and violent? An assessment as to the nature of relationship is a relevant circumstance in determining if an injury was more likely to be caused by accident or by a deliberate unlawful act of the accused.
Was the accused welcome to stay at the unit or did the deceased want him to leave her unit? This is a relevant circumstance in determining if the accused had a motive to act violently towards the deceased.
That the injuries sustained at or around the time of death did not occur "out of the blue" but in the context of a relationship that was punctuated by hostility between the deceased and accused in word and in acts.

The Crown also contends that evidence that Ms Locke was reluctant to get Mr Walker into trouble by making formal statements to police about his violence towards her and that she was unwilling to go to a refuge or engage with domestic violence services, is relevant, because it makes it unlikely that she fabricated representations about his violence.
For Mr Walker it was argued that some of the representations in issue were not relevant, others because they were too distant in time and some because they were not sufficiently connected with what will be in issue at trial. Further that some are not admissible because they do not fall within ss 65(2)(b) or (c) of the Evidence Act and even if they do, or are admissible under s 66A, they ought to be excluded under ss 135 or 137, given the incomplete picture as to Ms Locke's complex problems which they would put before the jury.

Section 65

The section relevantly provides: "65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or…"
Under cl 4 of Part 2 of the Dictionary, a person is taken not to be available to give evidence about a fact if the person is dead.
Section 65(2)(b) requires first, that the representation was made either when, or shortly after the asserted fact occurred and secondly, in circumstances that make it unlikely that the representation was a fabrication.
In Sio v The Queen (2016) 90 ALJR 967; [2016] HCA 32 it was observed at [57] that s 65(2): "57 ... proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65."
Further at [63]: "63 Section 65 gives effect to the view that the circumstances of the making of an out of court statement conveying an assertion of a relevant fact may be such as to indicate that the representation is likely to be reliable - and the asserted fact likely to be true - notwithstanding the hearsay character of the evidence. The section operates on the footing that the circumstances in which the representation was made may be seen to be such that "the dangers which the rule seeks to prevent are not present or are negligible in the circumstances". In such a case, "there is no basis for a strict application of the rule." [Footnotes omitted]
What is meant in s 65(2)(b) by "shortly after" is not defined. In Harris v R (2005) 158 A Crim R 454; [2005] NSWCCA 432, after referring to the decided cases, including Williams v The Queen (2000) 119 A Crim R 490, where it was considered that a lapse of five days took the representations there in question "outside the likely temporal realm of statements that may be considered to be reliable because made spontaneously during, or under the proximal pressure of events" (at [49]), it was observed in Harris at [39]: "39 ... No attempt has been made in the decided cases to prescribe the words "shortly after" by the passing of any defined period of time. Each case has to be considered having regard to its own particular circumstances. For example, as Mr Dhanji properly acknowledged in the course of his able argument, a statement made by a person recovering consciousness five days after an event may well be considered to have been made "shortly after" that event."
In Natasha Youkhana v R [2013] NSWCCA 85, following R v Ambrosoli (2002) 55 NSWLR 603; (2002) NSWCCA 386 at [28] - [29], it was observed at [51] that the circumstances which could be taken into account include events outside the time and place of the making of the representations. Following Harris, at [44] - [45], in Youkhana it was accepted that acknowledgement that the person making the representation is liable to prosecution if he or she wilfully states anything known to be false, or did not believe to be true, was capable of supporting the conclusion that it was made in circumstances that make it unlikely that the representation is a fabrication.
In Ambrosoli Mason P observed at [28] - [29], that s 65(2)(b) and (c) require that the circumstances of the making of the representation be examined, to determine unlikelihood that the representation is a fabrication, or high probability that the representation is reliable, the focus being the reliability of the representation, not (directly) the reliability of the asserted fact. In the result, evidence of later events may be relevant. The examples given were an express retraction, or evidence that the person was incapable of having heard or seen the matter the subject of the previous representation.
In Sio it was observed: "69 In R v Ambrosoli [42], Mason P, with whom Hulme and Simpson JJ agreed, while discussing s 65(2)(c) of the Evidence Act, said that the provision seeks to focus attention upon the circumstances of the making of the representation to determine the likelihood of its reliability, but that: "evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby." 70 That observation may be accepted. …"
It follows that in considering the circumstances in which each of the representations in issue was made, it is not the reliability of the asserted fact, namely that Mr Walker was violent towards Ms Locke, which arises to be considered, but rather the reliability of her representation as to such violence having occurred. Light can, however, be shed on that question, by evidence of other events which have occurred, which throw light upon Ms Locke's making of the representation and its reliability.
Such other events include, for example, occasions when Ms Locke made false representations about having complained to police about Mr Walker's violence towards her and the pursuit of AVOs against him, as well as about other matters; that there had, however, been occasions when other people had seen Mr Walker acting violently towards Ms Locke; and that in the case of some of the representations in issue, they were made at a time when Ms Locke was receiving treatment for her ongoing mental health problems.
Section 65(2)(c), by way of contrast, requires that the representation was made in circumstances that make it highly probable that it was reliable. As discussed in Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 at [146] that imposes a more onerous burden than the second limb in s 65(2)(b).
Section 66A provides: "66A Exception: contemporaneous statements about a person's health etc. The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind."
Such evidence must of course be relevant, as s 55 requires, that is, evidence which "if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." If relevant, the representation is admissible to prove not only that it was made, but as to what the person's health, feelings, sensations, intention, knowledge or state of mind was.

The disputed representations

Ms Large is a neighbour. The evidence which she could give which is in dispute is: STATEMENT DATE PARAGRAPH Locke told Large that Walker was throwing things at her. "Every time I saw her she told me". The last time she told Large was two weeks before she died. Christine Large Transcript 01.12.16 Locke told Large that Walker kicked her, blamed her for stuff and yelled about money all the time. Locke said "he's always hurting me" and "he's always doing it".

In R v Toki (No. 3) [2000] NSWSC 999, also a case involving representations about domestic violence, Howie J observed at [29] - [30]: "29 The relationship between the accused and the other person can be proved in a number of ways. It can be shown by statements and acts of the accused, by direct evidence of other witnesses and by circumstantial evidence. It can also be proved by statements made by the other person where that person's opinion of the relationship is relevant and the statements are otherwise admissible: R v Matthews (1990) 58 SASR 19; Frawley (1990) 69 A Crim R 208; R v Serratore, above at 107-108. 30 Where the relationship between the accused and the other person includes the infliction of injuries upon the other person by the accused, this fact can be proved by direct evidence of witnesses or, where admissible, statements made by the other person. It can also be proved by circumstantial evidence which raises a presumptive inference that the accused was the author of the injuries: R v Hissey at 289; Shaw v The Queen (1952) 85 CLR 365 at 377."
At committal Ms Large said that she saw one incident of violence, when Mr Walker threw a cup at Ms Locke and that she always heard Mr Walker yelling at Ms Locke. The last time that Ms Locke told Ms Large that "he was always throwing things at her", was two weeks before her death.
Mr Walker's case was that these representations were markedly different to those admitted in Toki, because they did not concern particular incidents, following which Ms Locke had sought medical assistance or refuge in relation to fresh and significant injuries, so as to satisfy the test in ss 65(2)(b) and (c).
The representations which Howie J admitted in Toki went to statements made by the victim to other persons about particular injuries, which his Honour concluded were sufficiently connected to the occurrence of the injuries, that they met the test as to the temporal connection between the statement attributing the injuries to the accused and the infliction of the injuries, as well as being made in circumstances in which it was unlikely that the assertions were a fabrication and make it highly probable that the representation was reliable: at [90] - [91]. A similar conclusion was reached in relation to representations made to medical practitioners on the day following injury: at [93] - [95].
In relation to the statements not admitted, Howie J held at [98] that: "98 However, general statements made by the deceased that the accused was assaulting her and which are not related to particular injuries are not admissible. They do not have sufficient proximity to the asserted fact under s 65(2)(b). If I consider only the circumstances in which the statements are made, I am not satisfied that they meet the test in s 65(2)(c)."
Given that Ms Large can give evidence that she saw Mr Walker throw a cup at Ms Locke, if it was her evidence that one of the times that Ms Locke told her that Mr Walker was throwing things at her, was at that time, I am satisfied that her evidence would be admissible under s 65(2)(b). That would establish that Ms Locke had made that representation shortly after the asserted fact, while Ms Locke was under the "proximal pressure of events" and in circumstances that make it unlikely that the representation was a fabrication, given what Ms Large herself observed.
Otherwise, it is not apparent that the representations made by Ms Locke were made shortly after the asserted fact.
I do not consider that because Ms Large's evidence would be that Ms Locke told her that Mr Walker was throwing things at her, "every time I saw her", so that these representations were being made regularly, "at least close in point of time to when that happened", makes available the inference for which the Crown contended. Namely, that on each occasion, the representation was made shortly after the asserted fact occurred. Not enough is known about the individual circumstances, for those inferences to be drawn.
Accordingly, Ms Large's evidence about those representations are not admissible under s 65(2)(b).
Nor are they admissible under s 65(2)(c).
Representations that Mr Walker was throwing things at Ms Locke, even when made repeatedly to a neighbour, do not establish that they were made in circumstances that make it highly probable that they were reliable. More must be known about each of the circumstances in which Ms Locke repeated that representation, before such a conclusion could be drawn.
Ms Large also reported to police that Ms Locke had told her that Mr Walker would kick her, but she could not recall any conversation in which that had been said. She said that "her words was he never actually used his hands, he would actually put his shoes on, hard boot shoes on and kick her and throw things at her". Ms Locke said this nearly all the time, but Mrs Large could not remember when.
Ms Large also could not specifically remember when Ms Locke told her that "He's always hurting me", but she also said this "nearly all the time".
None of these representations were made in the context of any particular event. While it appears that Ms Locke repeatedly discussed such conduct with Ms Large, it is not apparent that any of these representations were made shortly after the asserted fact. They are thus also not admissible under s 65(2)(b).
Ms Large's limited description of the circumstances in which these other representations were repeatedly made by Ms Locke, without being able to place them either in time, or in connection with the only act of violence that she ever saw, also does not leave open the conclusion that it was highly probable that each of these representations, when made, was reliable.
They are thus also not admissible under s 65(2)(c).

Dr Winston Kardell 28.04.16 16 & 27 - 27/3/15 observed bruise on left eye. Dr understood it related to Walker taking Locke's money. Genice Jaramillo 31.03.16 27 - on 27.03.15, Locke had a black bruise around her left eye. Locke said "her partner has hit her when she refused to give him money."

The Crown asserts that Mr Walker punched Ms Locke in the eye, during an argument over money.
It is conceded for Mr Walker that a bruise observable on 27 March was likely to have been caused in the order of hours or days beforehand, but it was submitted nevertheless, that this representation was not made shortly after the event. That the time which had elapsed permitted concoction was also submitted to be relevant.
Whether a representation was made shortly after the asserted fact occurred is a question of fact, to be resolved in light of the event in question and the time which has elapsed. It does not depend on whether there has been an opportunity for fabrication, although the possibility of fabrication is undoubtedly a relevant consideration to the second limb of s 65(2)(b). Even representations made very shortly after an event, can give rise to such an opportunity.
One of the considerations which is relevant is that the time that the representation was made is such that memory has not faded: R v Mankotia (1998) NSWSC 295 at 5-6. Another is that the representation was made when the person was under the "proximal pressure of events": Williams at 502.
It is thus relevant that Ms Locke was receiving daily methadone treatment from the clinic at which Dr Kardell and Ms Jaramillo worked. At times she did not attend because she was in hospital and at other times her attendance was intermittent. It was not submitted that this representation was made at such a time.
Dr Kardell would give evidence that Ms Locke was referred to him by the team at the clinic on 27 March 2015, with a bruised left eye area, before she could be dosed. Ms Locke was crying and very emotional when he spoke to her about Mr Walker, but she would not talk about him. He referred her to Avis, her Aboriginal case worker and police were notified.
Dr Kardell believed that the bruise was due to Mr Walker taking Ms Locke's money, but whether his belief rested on any representation made by Ms Locke, is not disclosed by his statement.
It follows that Dr Kardell could give evidence about his observation that Ms Locke had a bruised left eye and that she was crying and very emotional when she was referred to him and that she refused to talk, when he tried to speak to her about Mr Walker. That he can give evidence of any representation which Ms Locke made as to the cause of the bruise, is not apparent on his statement.
In the result, s 65 does not arise in relation to Dr Kardell's evidence.
Ms Jaramillo is a nurse at the clinic Ms Locke attended for methadone treatment. She became her case manager in 2012.
Amongst the evidence Ms Jaramillo would give is that it she made the 27 March note which recorded that on presentation, nurses had noticed the bruise on Ms Locke's left eye; that she was referred to Dr Kardell, who contacted Avis and advised her of domestic violence involving Ms Locke and that she was not safe to go home. Police were contacted and when Ms Locke learned of this, Ms Locke refused to stay and walked out. Police were called again and the despatch was then cancelled.
Ms Jaramillo was one of the attending nurses and herself saw the bruise. She was also present when Dr Kardell saw Ms Locke and heard her say that it was her partner who had hit her. Ms Locke heard Dr Kardell speak to police on the phone. That made Ms Locke aware that police were coming and she then left, despite Ms Jaramillo trying to support her to stay.
I am satisfied that the representation Ms Jaramillo heard Ms Locke make about the cause of the bruise to her eye, which both she and Dr Kardell and observed, when she attended for treatment at the clinic that day, was made shortly after the asserted fact occurred, while Ms Locke was under the "proximal pressure of events".
Whether the representation was made in circumstances that make it unlikely that it was a fabrication, is more difficult to resolve.
As argued for Mr Walker, given Ms Locke's drug and alcohol use and the seizures which she suffered, it is possible that the bruise could have had another cause, than having been inflicted by Mr Walker. It is relevant that at times Ms Locke used representations about violence to engender sympathy and obtain favourable treatment, for example in relation to home methadone treatment. Of itself that does not make such representations untrue. If true, acts of violence would provide a proper basis for Ms Walker to seek both sympathy and treatment which accommodated any resulting injury.
It is also relevant that Ms Locke's medical history is replete not only with psychotic episodes and both forced and voluntary admissions when she had suicidal ideation, but also with observed injuries which are consistent with Ms Locke having been the victim of violence of the type about which witnesses will give evidence. They may also, however, be consistent with injury suffered during seizures.
The evidence as to the circumstances in which this representation was made to Ms Jaramillo, however, does not suggest that Ms Locke had a motive for not telling the truth about the cause of the bruise to her eye, observed when she attended for methadone treatment that day. On this occasion it appears that Ms Locke not only had nothing to gain by concealing that it was a seizure, for example, which was the real cause of her injury, she also had nothing to gain by lying about Mr Walker having caused the bruise, if that was untrue.
It is also relevant to consider that in fact, Ms Locke did suffer a disadvantage, by not recanting her account as to the cause of the bruise. Because she did not do so, not being prepared to remain, to repeat to police who had been called, what she had represented to Ms Jaramillo, she did not receive methadone treatment.
There are two obvious explanations for this. One, that the representation about the cause of the bruise was not true. The other that it was true, but that Ms Locke was not prepared to report the assault to police, despite what she falsely said at other times, including to other medical personnel, about having made such reports about Mr Walker's violence towards her.
It is an agreed fact that Ms Locke never made such a report to police, despite the evidence that there were occasions when Mr Walker was violent towards her. Account must be taken of this, as was argued for Mr Walker. Account must also be taken, however, of what is now well known about the causes of such behaviour. Reluctance to pursue such protection is regrettably not an unknown attitude amongst victims of domestic violence. As discussed in Drew v R [2016] NSWCCA 310 at [88] - [89]: "[88] It is notorious that offences committed within the context of domestic violence are under-reported and that such under-reporting is not confined to Indigenous communities. As the Victorian Court of Appeal observed in Pasinis v R [2014] VSCA 97: "The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm." [89] High rates of non-disclosure by Indigenous victims of domestic violence have been attributed, among other things, to the potential for stigma and ostracism from family and community members. Indigenous victims may also, for historical and pragmatic reasons, fear contact with police and the courts or regard the authorities as unable to help them."
It is also relevant, as was argued for Mr Walker, that Ms Locke fabricated other representations which she made at other times to other doctors and nurses, for example about having suffered cancer and the number of her children and her relationship with them.
I am satisfied that this does not, however, necessarily preclude the conclusion that there were occasions when Ms Locke did tell others the truth about violence which Mr Walker had directed at her. That evidence will be led, to which objection was not taken, to establish that such violence actually occurred, may also not be overlooked.
What arises for determination, it must be remembered, is not the actual cause of the bruise to Ms Locke's eye, but the circumstances in which she made her representation to Ms Jaramillo, as to its cause.
It is thus relevant to take into account that on this occasion, because Ms Locke was not prepared to repeat her representation that it was Mr Waker who had caused that bruise to police, she did not receive her methadone treatment. That supports the conclusion that it was unlikely that this representation was a fabrication.
In the result I am satisfied that this representation was made both shortly after the asserted fact occurred and in circumstances which make it unlikely that it was a fabrication, given not only the nature of the injury, a bruise to the eye; what Ms Locke said about its cause and to whom; and that the result of her refusal to repeat what she had said to police, was that she did not receive methadone treatment. It would have been a simple matter for Ms Locke to tell Dr Kardell and Ms Jaramillo that the bruise had some other cause, if that was the truth. That she did not do so and left in order to avoid police, supports the conclusion that in all of the circumstances, it was unlikely that this representation was a fabrication
In the result, this representation is admissible under s 65(2)(b). STATEMENT DATE PARAGRAPH 14 - on 23.03.12, Locke "stated that her partner had bashed her 3 times after being discharged from the hospital." Stated it was safe to Genice Jaramillo 31.03.16 go home "it is my house so I will kick him out." 22 - Locke called at 0750 hrs and "advised that her partner was allegedly violent physically towards her. She advised she cannot walk properly and that she has taken '45' pills last night and it did not even touch her''.

Ms Jaramillo would also give evidence that it was she who wrote the note in Ms Locke's file, about a representation she made on 23 March 2012, that Mr Walker had bashed her three times after her discharge from Hospital and that she gave Ms Locke advice that day, as she had on other previous occasions, about not returning home and going instead to a refuge.
Ms Locke had been discharged from Hospital on 12 March. It cannot be accepted that the representation made on 23 March was made "shortly after the asserted fact occurred". When, during the intervening period Ms Locke had been bashed, is simply not apparent.
Further, as R A Hulme J discussed in R v Grogan & Slacke (No 1) [2013] NSWSC 1191 at [15], "bash" is an emotive term about which minds may reasonably differ as to what was done and the level of violence involved. What Ms Locke intended to convey by her use of this term, is impossible to know. In those circumstances it also cannot be concluded that the representation was made in circumstances that make it unlikely that it was a fabrication.
Evidence of this representation is thus not admissible under s 65(2)(b).
That the circumstances in which this representation was made, make it highly probable that the representation is reliable, is also not established. Evidence of this representation is thus not admissible under s 65(2)(c).
Ms Jaramillo would also give evidence that on 5 February 2015 she made a note at 8.15am, that Ms Locke had called at 7.50am to advise that her partner was allegedly violent towards her; she had taken 45 pills; he was still in the house; she had called police the night before and that they did not come. Ms Jaramillo then notified police.
The Crown relies only on part of this as evidence of Ms Locke's intention to overdose on pills, admissible under s 66A, not to lead evidence of the representation about violence.
It is common ground that this representation is admissible on that basis. STATEMENT DATE PARAGRAPH 13.03.15 13.03.15 Dr Maria Yu Consulting notes Blacktown Hospital & Bungaribee "Jamie continues to stay with her, she asked him to move out of her home. He continues to use recreational drugs and abuse her. She said she cannot take it anymore and wanted to kill herself." House

Dr Yu was a Registrar working at Blacktown Hospital. She would give evidence that she saw Ms Locke on several occasions when she presented to the Emergency Department with suicidal ideation and exhibited physical injuries. On some occasions that was connected with complaints about Mr Walker, on others it was connected with other problems in Ms Locke's life. The evidence suggests that while suicidal ideation was often expressed, Ms Locke did not act upon it, or her complaints about Mr Walker's violence.
Ms Locke was discharged from hospital on 13 February 2015. On 13 March she was admitted again as a voluntary patient, again with suicidal ideation. Dr Yu's note records representations that Mr Walker continued to stay with Ms Locke, that she had asked him to move out, that he continued to use recreational drugs and abuse her; that she could not take it anymore and that she wanted to kill herself.
The Crown relies on these representations as evidence of Ms Locke's feelings and intentions, admissible under s 66A. It was conceded that the evidence was probably admissible under s 66A and need not meet the requirements of s 65(2)(b), but it was submitted that they were not relevant, given the nature of the Crown case and what was in issue, which was submitted to be unlike that in R v Gittany (No 4) [2013] NSWSC 1737, where the alleged controlling nature of the relationship was in issue.
I do not consider that to be a relevant distinction, given that the Crown case is that this relationship was volatile, involving domestic violence and that Mr Walker's motive to act violently towards Ms Locke was demonstrated by her representations about the state of the relationship, which included that she wanted him to leave.
As discussed in Wilson at 339, evidence of the relations between Mr Walker and Ms Locke which tends to establish motive is relevant and admissible, as is evidence which assists in the choice to be made between the two explanations for her death.
I am thus satisfied that these representations are both relevant to what is in issue and admissible under s 66A, Dr Yu being called to give evidence of the contemporaneous expressions of the words by which Ms Locke expressed her feelings and intentions about her relationship with Mr Walker and her state of mind, when seeking further admission to hospital in March 2015.
That Dr Yu's evidence does not make sense, without the other allegations to which objection is taken being received, cannot be accepted, given both the other relationship, transactional and hearsay evidence which will be led, as well as the evidence of what Mr Walker did, to which no objection is taken, as well as the evidence about those matters which will be received, despite objection.
That by March 2015, Ms Locke had been diagnosed with borderline personality disorder, as well as post-ictal psychosis and was being medicated with antipsychotic medication, also does not make this evidence inadmissible. Evidence about Ms Locke's complex medical problems and their treatment will be led. It will thus be for the jury to consider, when assessing the evidence of Ms Locke's feelings and intentions and state of mind, not long before her death, the evidence that at the time, she was suffering from various significant mental health issues.
That the use of the word "abuse", in the context of the evidence which will be led about this volatile relationship, is too general to be relevant, may also not be accepted. Unlike the word "bash", earlier discussed, I do not consider that the word abuse, when used by Ms Locke in the context of wanting to end a relationship involving both verbal and physical abuse, is a similarly emotive term, which did not reveal what Ms Locke intended to convey, when she used it.
I am also satisfied that the representations may not be excluded under either s 135 and s 137. They provide: "135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
It was not submitted that the evidence had no probative value. It is no doubt prejudicial, but that it is not unfairly prejudicial, even though Ms Locke cannot be cross-examined about her representations, must be accepted. Of itself that cannot make receipt of this evidence unfair. As discussed in R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at [164], in such a case careful attention must be paid to the nature of the "prejudice" relied upon.
That was identified to be that the representation that Mr Walker continued to abuse her was too general and that while evidence of her suicidal ideation at particular times would not be objected to, because, for example, it was relevant to a challenge to evidence to be given by a neighbour, Mr Brent, about the circumstances of one admission, the receipt of this evidence would unnecessarily complicate and lengthen the trial. That was because it would require a greater examination of other occasions when Ms Locke had been identified to have had suicidal ideation for different reasons, as well as an examination of her various mental health problems and their consequences, which might require expert evidence.
Even if evidence of this representation is not received, however, evidence of Ms Locke's complex conditions and the problems which they caused her, as well as her other problems and their impact, will all be led and will have to be considered by the jury. The parties propose to deal with her medical history by way of summary.
These representations are neither misleading nor confusing. That there were other occasions when Ms Locke proffered other reasons for suicidal ideation, including on some other occasions, Mr Walker's violence, is apparent on the records. That there is any issue about the nature of Ms Locke's medical conditions and their consequences is not apparent.
In the result I am not satisfied that the receipt of evidence of this representation will necessarily result in a considerable increase in the evidence which must be led, or in the lengthening of the trial, or even the necessity to lead expert evidence, given that Dr Yu, will have to be called for cross examination, of required. As discussed by Heydon J in Clark at [164], that is a relevant consideration, which points against the conclusions for which Mr Walker urged.
In the result it cannot be concluded that the receipt of this evidence will result in the unfair prejudice about which complaint is made, even if the jury has to be told more about Ms Locke's complex problems and their consequences than would be the case, if the evidence was not received.
The probative value of this evidence is also not outweighed by the danger of unfair prejudice to Mr Walker. While this involves a balancing exercise, its resolution in the case of these representations, does not permit the conclusion that this evidence should not be admitted, because of Ms Locke's use of the word "abuse", or that the result of its admission is that more evidence must be led as to her medical conditions and their consequences. 11 - "As I got older mum would tell me of the violence that Jamie had done to her. Over the last couple of years she said that the violence by Jamie was getting worse. She would often tell me that Jamie had punched and kicked her." Elisha LOCKE 29.04.2015 14 - "In about December 2014 or January 2015 ... Mum opened right up to me over the phone about the abuse she had received from Jamie. Mum told me that Jamie had turned very violent and would snap very easily. She said that he would punch her and kick her. Mum told me that she could not take it anymore and wanted to leave."

Ms Locke's daughter Elisha is to be called to give direct evidence about having observed Mr Walker being violent to her mother, when she lived with them. An objection to that evidence has been foreshadowed, on the basis that what was observed occurred too long ago. That has not yet arisen to be resolved.
Ms Locke would also give evidence about her mother telling her about ongoing violence and eventually, of her desire to leave Mr Walker.
It was also conceded for Mr Walker that the representation that in late 2014 or early 2015, Ms Locke wanted to leave, if relevant, would probably be admissible under s 66A, but like the argument advanced in relation to the objection to Dr Yu's evidence, it was submitted that these representations were not relevant and that other representations at [11] and [14] were not admissible under s 65(2).
The evidence of the representations that Ms Locke wanted to leave and that the violence was getting worse are both relevant, for the same reasons that Dr Yu's evidence about Ms Locke's state of mind and intentions about the relationship are relevant.
The representations are contemporaneous expressions of the words by which, in late December 2014 or early January 2015, Ms Locke told her daughter about her feelings and intentions about her relationship with Mr Walker and her state of mind, when they spoke on the phone. That the words were spoken in a telephone conversation, is not a proper basis for refusing their admission. Given the relationship between Ms Locke and her daughter, it is understandably not suggested that there is any issue that it was Ms Locke who made the representations.
In the result, those representations are also admissible under s 66A.
Elisha Locke's evidence would also be that she had stopped living with Ms Locke and Mr Walker when aged 15 and that as she got older, Ms Locke told her about ongoing violence, and that Mr Walker had often punched and kicked Ms Locke.
While there will be evidence of Mr Walker being violent towards Ms Locke, on Elisha Locke's statement, none of these general representations, which Ms Locke made over the course of many years at unspecified times, related to any particular event. It is thus not apparent that any of them were made when, or shortly after, the asserted fact occurred. The mere making of the representation to Ms Locke's daughter, that Mr Walker had kicked and punched her, is not a sufficient basis upon which that inference can be drawn, particularly given the intermittent contact which they had over those years.
In the result, they are not admissible under s 65(2)(b).
Nor can it be concluded from Elisha Locke's statement that these general representations were made in circumstances that make it unlikely that they were either a fabrication, or highly probable that they were reliable.
The Crown's case, that the absence of any relationship between Elisha Locke and Mr Walker, after she stopped living with him and Ms Locke, provided a proper foundation for that conclusion, cannot be accepted. Nor does the fact that Ms Locke made these representations to her daughter, who had seen Mr Walker act violently to her mother, while she lived with them, permit the inferences which the Crown urged, to be drawn.
That is not a sufficient basis for the conclusion to be reached either that it is unlikely that any of the representations which Ms Locke made to her daughter over some 15 years were a fabrication, or that it was highly probable that they were all reliable. There is simply not enough known about the circumstances in which these representations were made, for those conclusions to be reached.
These representations are also not admissible under s 65(2)(c). STATEMENT DATE PARAGRAPH Sharon HEATLEY 27.04.2015 14 - "She [has] told me a number of other times about Jamie assaulting her by kicking and punching her in the head. But I cannot remember when, I cannot remember seeing [any] other injuries."

Ms Heatley was also a neighbour. She would give evidence about the night of Ms Locke's death; that while she had heard a lot of yelling over the years, she had never seen any violence between Ms Locke and Mr Walker; and that Ms Locke had told her about Mr Walker kicking and punching her, but she did not remember any injuries, apart from when Ms Locke had the cast on her wrist.
The repeated representations that Mr Walker had assaulted Ms Locke by kicking and punching her in the head are not admissible under either s 65(2)(b) or (c). On Ms Healey's statement it cannot be concluded that any of these representations were made shortly after the asserted fact occurred. The mere fact that they were made to a neighbour, does not establish this.
Again, not enough is revealed about the circumstances in which this repeated representation was made, to conclude that on each occasion, either that it was unlikely that the representation was a fabrication, or highly probable that it was reliable.
These representations are thus also not admissible. STATEMENT DATE PARAGRAPH Dr Maria Yu 6-7.07.14 "Linda claimed that Jamie has been threatening her and has tried to choke her yesterday and today. She said she did not report this today [to] the police she had thoughts of killing herself so he Consulting note could not harm her anymore."

Again, it was conceded for Mr Walker that the note was probably admissible under s 66A, but it was contended that the representation that Ms Locke had thoughts of killing herself, was not intelligible without the explanation of the reasons, which were not admissible. For similar reasons to those advanced in relation to Dr Yu's other evidence and note, the representation about Ms Locke's state of mind is also relevant and admissible.
The representations that the previous day Mr Walker had been threatening Ms Locke and on that and the previous day, he had tried to choke her were made to a medical practitioner, shortly after the asserted fact occurred.
The Crown relied on Dr Yu's account that Ms Locke made allegations about Mr Walker having been violent towards her both when psychotic and after responding to antipsychotic medication, to support the finding that these representations were made in circumstances that make it unlikely that they were a fabrication.
Like in Toki, that the representations were made to a medical practitioner on admission to hospital, is relevant to the assessment of whether they were made in circumstances that make it unlikely that they were a fabrication. So, too, however, is Ms Locke's psychotic state, at the time that they were made, she not having taken her antipsychotic medication since release from hospital on 2 July. That she then made untrue representations about other matters, such as not having been offered food since arrival in hospital, when she had been given sandwiches in the emergency department, which she had eaten, is also relevant.
That Ms Locke had repeatedly, on other occasions, made false statements about other matters, including having reported Mr Walker's violence to police and having pursued an AVO, as well as about her various personal circumstances, were also relied on for Mr Walker on, as was the fact that in the past, Ms Locke had made allegations to medical practitioners about Mr Walker's violence, without consequence in terms of police contact.
I do not consider that Ms Locke later, while still admitted, made other representations about Mr Walker's violence, when she was not psychotic leaves open the conclusion that in the circumstances in which these representations were made, when she was psychotic, it was unlikely that they were a fabrication. Given what the records disclose as to her then psychotic state, the nature of this allegation, and the absence of a suggestion that there was physical evidence that she had been choked, unlike the representation made to Ms Jaramillo about her bruised eye, this conclusion is not open.
In the result this representation is not admissible.
It was also argued that this representation would be excluded under ss 135 or 137, given that the probative value of evidence about Mr Walker having choked Ms Locke was outweighed by the danger of unfair prejudice and further, that it would also would require evidentiary examination of the nature and consequences of Ms Locke's psychotic condition, which would not otherwise be required.
I consider that if these representations had been admissible, they should have been excluded, given their nature and her state at the time that they were made. 6 - "She told me her partner used to kick her. She would go home and he would kick her and swear at her and so on." Avis DEGURARA 05.05.2016 7 - "One time I saw that she had bruises on her body ... It was at this time that Linda told me that her partner had done it to her. She would never say his name." 13 - "Linda told me that her partner had assaulted [her] many times over the years. She would tell me that she would go on the floor into the corner and put her arms up to protect herself and he would kick her. She also told me on one occasion that he would grab her and throw her around and she would fall to the ground and he would kick her. I told her not to go back there as he would kill her and she would not leave."

Ms Degurara is a mental health worker who supported Ms Locke when admitted from time to time in psychiatric institutions. She is retired and in making her statement, she had not referred to any files.
The only representation about which Ms Degurara would give evidence, which may have been made shortly after the asserted fact occurred, is that in paragraph 7, as to the bruises which Ms Degurara saw on Ms Locke's body. Contrary to the submissions advanced for Mr Walker, that is evidence of specific injury, which Ms Degurara herself observed. The Crown relied on this to establish that the circumstances made it unlikely that the representation was a fabrication.
There is, however, no evidence about when the bruising occurred. Unlike the bruised eye which Ms Jaramillo observed, in this instance the fact that Ms Degurara observed bruising, of itself, cannot establish that the representation that it was Mr Walker who had caused that bruising, was made when or shortly after the asserted fact occurred.
In the result, the representation is not admissible under s 65(2)(b).
Ms Locke's mental health problems and the fact that the other representations were all made at unspecified times during admission for treatment of those problems, does not leave open the conclusion that any of the other representations were made when or shortly after the asserted fact occurred. Nor is there sufficient information on which it could be concluded that any of these representations were made it in circumstances in which it was unlikely that they were a fabrication.
In the result, they are also not admissible under s 65(2)(b).
Nor are they admissible under s 65(2)(c). The circumstances in which they were made do not establish that it was highly probable that they were reliable. 6 - During visit on 17.04.09 "Lynda stated that she had a fight with partner last night, has a fat lip, stated that the partner threw the phone at her chest and she has bruising". "Lynda also stated her wound is infected, not closed over and oozing." Statement of Grant Katte 04.05.16 "Lynda stated that she is safe in the house with her partner despite evening D.V. Does NOT want to involve police or any other service, refused any assistance in relation to DV issues." 9 - A day after a bruise was noticed she said things like "It's my fault", "He's sorry", "He loves me".

Mr Katte is a nurse unit manager at Blacktown Hospital and works out of the methadone clinic Ms Locke was attending. He had known her since 2008.
The objection to the evidence about violence in 2009 was that it was too distant in time and remote in seriousness, to rationally affect the jury's consideration of a fact in issue. If relevant, its probative value was submitted to be so low that it should be excluded under s 137.
The evidence Mr Katte would give is that these representations were made at Ms Locke's home, when Mr Walker was present; that he did not acknowledge Mr Katter or the other nurse with him.
Ms Locke's emotional arousal from a fight, if it had occurred, was argued to suggest that the representation was likely to be a fabrication, as was her methadone treatment, and her proclivity to make "fantastically untrue representations about her personal circumstances". These were said to include representations which were highly damaging to Mr Walker; and that they were made, to curry sympathy, so that a longer period of home dosing could be obtained, by Ms Locke exaggerating her vulnerability.
I do not accept these submissions.
On the evidence which will be led, the relationship between Mr Walker and Ms Locke has long been volatile. Ms Elisha Locke and other witnesses would give evidence of having seen Mr Walker being violent towards Ms Locke. Despite this, Ms Locke never made complaint to police, or pursued an AVO, notwithstanding what she falsely told others about having done so. What she told Mr Katte in 2009, casts considerable light on this conduct, over the ensuing years up to her death in 2015.
Ms Locke's representations were made the day after the fight she told Mr Katte about, when she had a fat lip and bruising. These representations were thus made shortly after the asserted fact occurred, while Ms Locke was under the "proximal pressure of events".
Given what Ms Locke then told Mr Katte about feeling safe, which is admissible under s 66A, I am satisfied that her representations about these matters were made in circumstances that make it unlikely that they were a fabrication.
They are thus admissible under s 65(2)(b), as is the representation about the state of her wound, which was then observable.
That any of the representations which Mr Locke ever made about Mr Walker having acted violently towards her were "fantastically false", as was submitted, does not arise to be determined on this application. If it did, the obvious difficulty would be the absence of objection to evidence of some representations about such conduct and the evidence which various witnesses would give, that they saw such conduct.
In the result, the evidence of these representations is relevant and admissible and should not be excluded under s 137, its probative value not being outweighed by the danger of unfair prejudice Mr Walker.

Amendments 21 August 2017 - Publication restriction lifted - trial concluded DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2017

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