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'I have to kill my kids' father to survive': Setka's ex

Union boss John Setka's estranged wife told a private investigator "I have to kill my children's father to survive, you're going to help me work out how I do it", a court has been told.

The comments were revealed in a secret video played to court on Tuesday, when Emma Walters had a firearm charge against her dismissed.

The 47-year-old, who shares two children with the Construction, Forestry, Mining and Energy Union's Victorian secretary, faced Melbourne Magistrates Court to fight allegations she threatened to kill Mr Setka.

The charge against Walters, to which she has pleaded not guilty, alleges she made a threat to kill Mr Setka to private investigator Adrian Peeters, intending he would "fear such a threat would be carried out or being reckless as to whether or not" he would fear the threat would be carried out.

Emma Walters leaves the Melbourne Magistrates Court
Emma Walters was secretly recorded by a private investigator.

She had faced an additional charge of attempting to commit an indictable offence, over police claims she tried to acquire a handgun.

But Magistrate Leon Fluxman dismissed that charge, after Walters' lawyer argued there was no evidence on the description of the gun.

"There is no direct evidence at all about the nature of the firearm, and no evidence capable that it could meet the definition of a handgun," defence barrister Emily Clark said.

Walters was secretly recorded by Mr Peeters during a visit to her West Footscray home on March 21, 2023, following a request about "debugging" the premises.

He said the conversation "shifted quite quickly" from debugging to her alleged threats to kill Mr Setka.

"Ms Walters initiated the shift, she stated that she needed a 'piece' and she had to kill the father of her children," he told the court.

He said he began recording on his phone after about 10 minutes for his own safety, after she allegedly told him she wanted to "lure" Mr Setka to the home.

"I know how to use a gun alright, and I'm willing to deal with the consequences of having to go through the court process of self-defence," Walters is heard telling Mr Peeters, in the video.

"I have to kill my children's father to survive, and that is not a very good position to be in.

"Anyway, you're going to help me work out how I do it."

She is then heard telling Mr Peeters she was a "lawyer by trade" and that "this conversation never happened ... once it's in the court you cannot say that you have any knowledge of it".

John Setka (file image)
Emma Walters told police she didn't want to kill John Setka but had to protect herself.

After leaving the property, Mr Peeters said he contacted Mr Setka, through the union, to warn him. He then reported the incident to police.

Walters was arrested on March 29, and her police interview - where she is shown the video recording - was also played to the court.

She told detectives she was frustrated, distressed and used "florid language" because she "had a responsibility" to protect herself and her children from Mr Setka.

"The police have failed to protect me and the children," she said, in the interview.

"Do I want to kill John Setka? No, not at all. Do I have to protect myself? Yes. Do I intend to use a firearm to do so? No.

"That's a woman that's been in distress and the system has failed her and her children, time and time and time again, I was trying to express that."

Prosecutor Philip Teo said the secret recording proved she made a "distinct threat to kill" and her comments to Mr Peeters about "once it's in the court" showed the offending was premeditated.

Ms Clark said Walters did not intend for Mr Peeters to be fearful of the threat, nor was she reckless in making the threat.

"Did she want him to fear it? No, she wanted his help," she said.

The threat to kill charge carries a maximum sentence of 10 years in prison

Walters, who remains on bail, will return to the court on December 8, where the magistrate will hand down his verdict.

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