Vickers v R

Citation: Vickers v R [2006] NSWCCA 60
Court: NSW Court of Criminal Appeal
Date: 31 March 2006
Judges: James J, Simpson J, Hall J

Background

The appellant was convicted in the District Court of maliciously inflicting grievous bodily harm and assault occasioning actual bodily harm, arising from an incident in which he kicked a man in the head in a toilet and then urinated on him. At trial, the prosecution tendered a statement from a witness, Matthew Gould, who was unavailable to give evidence in person.

That statement was admitted under s 65(2) of the Evidence Act 1995, which provides an exception to the hearsay rule where the maker of the statement is unavailable. The defence objected at trial on grounds of late notice and discretionary factors, but did not separately challenge the content of the statement at that stage.

On appeal, the appellant argued that two specific portions of Gould's statement were inadmissible, and that the trial judge had failed to give the jury an adequate warning about the dangers of relying on the statement.

Legal Issues

• Whether the trial judge erred in admitting portions of Gould's statement that recorded what the appellant had told Gould, as those portions constituted second-hand (not first-hand) hearsay
• Whether those portions were alternatively admissible as admissions under Part 3.4 of the Evidence Act, or under s 289 of the Criminal Procedure Act 1986
• Whether leave was required under Rule 4 of the Criminal Appeal Rules before the appellant could argue admissibility grounds on appeal
• Whether the trial judge's jury directions adequately warned of the potential unreliability of the statement
• Whether, if any ground under s 6(1) of the Criminal Appeal Act 1912 was established, the proviso to that section should apply to dismiss the appeal nonetheless

Decision

The Court held that two passages in Gould's statement were not admissible under s 65 of the Evidence Act. The first recorded that Gould "heard the appellant say he was provoked in the male toilets," and the second recorded that the appellant said "I know" in response to a question from Gould. Both involved second-hand hearsay: evidence of what Gould represented that the appellant had said, which itself was used to prove an underlying fact. Under s 62, s 65 is confined to first-hand hearsay, meaning the witness must have directly perceived the fact asserted. Here, the police officer who tendered the statement was in effect relaying Gould's account of what the appellant had said, making the chain one step too remote.

The Court drew on the High Court's reasoning in Lee v The Queen (1998) 195 CLR 594, noting that the structure of the evidence in this case mirrored the inadmissible double hearsay identified there. The same passages were also found inadmissible as admissions under Part 3.4, because s 82 prevents admission of admissions that are not first-hand evidence. The Court also confirmed that s 289 of the Criminal Procedure Act could not rescue the statement, as no committal hearing had taken place and the statement did not meet the definition of a "prescribed written statement."

On the jury directions ground, the Court found the trial judge's warnings were adequate in the circumstances, pointing the jury to the potential unreliability of the statement, including the now-inadmissible portions. Leave under Rule 4 of the Criminal Appeal Rules was granted (though the judges expressed some reservation about whether leave was strictly required), and the second ground of appeal was rejected.

Ultimately, all three judges agreed the appeal should be dismissed by applying the proviso to s 6(1) of the Criminal Appeal Act. Applying the test from Weiss v The Queen (2005) 80 ALJR 444, the Court was satisfied that no substantial miscarriage of justice had occurred. The inadmissible portions played no material role in the verdict, and the properly admitted evidence, including Gould's direct account of the appellant admitting to kicking the victim in the head and urinating on him, proved guilt beyond reasonable doubt.

Orders Made

• Appeal against conviction dismissed.

Key Takeaways

• Under ss 62 and 65 of the Evidence Act 1995, only first-hand hearsay is admissible through the unavailability exception: where a witness's statement records what another person told them, and that other person's out-of-court representation is used to prove an underlying fact, the evidence is second-hand hearsay and inadmissible.

• The double-hearsay structure identified in Lee v The Queen applies equally to the admissions provisions in Part 3.4 of the Evidence Act: s 82 bars admission of admissions that are not first-hand evidence.

• A failure to object at trial to the content (as opposed to the procedural circumstances) of tendered evidence does not automatically preclude an admissibility argument on appeal, though leave under Rule 4 of the Criminal Appeal Rules may be required.

• Adequate jury directions addressing the potential unreliability of a hearsay statement, even one that included inadmissible portions, can satisfy the warning requirements under s 165 of the Evidence Act.

• In applying the proviso to s 6(1) of the Criminal Appeal Act 1912, consistent with Weiss v The Queen, the Court of Criminal Appeal will dismiss an appeal where it is satisfied that the admission of inadmissible evidence had no material effect on the verdict and the properly admitted evidence independently established guilt beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 56, 59, 60, 62, 65, 66, 67, 81, 82, 135, 137, 165, 192
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules, Rule 4
- Criminal Procedure Act 1986 (NSW), ss 68, 289
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases:
- Lee v The Queen [1998] HCA 60; 195 CLR 594
- Weiss v The Queen [2005] HCA 81; 80 ALJR 444
- House v The King [1936] HCA 40; 55 CLR 499
- R v Plevac (1995) 84 A Crim R 570