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Court of Criminal Appeal 22 March 2006

BROWN, BARWICK, BROWN v R

[2006] NSWCCA 69

Assault & violence

Citation: Brown, Barwick, Brown v R [2006] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 22 March 2006
Judge(s): McClellan CJ at CL; Hulme J; Rothman J

Background

Three appellants were charged with maliciously inflicting grievous bodily harm with intent upon a victim (referred to as Mr Gray) at Wellington on 27 June 2003. The jury convicted two of the appellants of the charged offence and the third of the statutory alternative. Sentences ranged from a non-parole period of one year and nine months to a non-parole period of nine years and ten months.

The prosecution's case relied heavily on statements the victim had made to three witnesses shortly after the assault: one near the Wellington tip where he was found injured, and two at the Wellington hospital. The victim had suffered brain damage as a result of the assault and could not give evidence about the events at trial.

The trial judge admitted those out-of-court statements as hearsay evidence under section 65 of the Evidence Act 1995, after ruling them inadmissible under section 66. The appellants challenged that ruling, along with other aspects of the conduct of the trial.

  • Whether the trial judge erred in admitting the victim's out-of-court representations under section 65(2)(b) and (c) of the Evidence Act 1995, on the basis that the victim was an "unavailable" witness
  • Whether the trial judge erred in failing to give the jury a warning about the potential unreliability of those representations under section 165 of the Evidence Act 1995
  • Whether the verdicts were unreasonable or inconsistent with the evidence
  • Whether the trial judge's directions to the jury on the question of the third appellant's participation as an aider and abettor were adequate

Decision

The central issue on appeal was whether the victim qualified as an "unavailable" witness for the purposes of section 65 of the Evidence Act 1995. Section 65 permits the admission of hearsay representations where the maker of the statement is not available to give evidence. The trial judge had found that although the victim was physically present, he was effectively unavailable because his brain injury meant he had no memory of the relevant events.

Hulme J, with whom McClellan CJ at CL and Rothman J agreed, concluded that the trial judge had erred in this characterisation. The question of whether the victim was "available" turned not simply on physical presence, but on whether he was competent to give evidence within the meaning of section 13 of the Evidence Act. The Court found that the evidence at trial did not support a conclusion that the victim lacked the necessary competence, and accordingly the hearsay statements should not have been admitted under section 65.

Because the improperly admitted hearsay evidence identifying the appellants as the perpetrators was central to the Crown case, the error was not one that could be cured. A new trial was required for all three appellants.

The Court also addressed the submission that a new trial should not be ordered for the third appellant (Mr Barwick) given that his non-parole period was close to expiry. The Court rejected this argument, noting that the only alternative was a directed verdict of acquittal, which the evidence did not justify, and that proceeding to retry only the two remaining appellants risked presenting a distorted picture to any future jury.

Orders Made

For each of the three appeals, the Court ordered:

  • The appeal be allowed
  • The conviction and sentence imposed by Judge English be quashed
  • A new trial be ordered

Key Takeaways

  • Under the Evidence Act 1995, a witness who is physically present but claims no memory of an event is not automatically "unavailable" for the purposes of section 65. The question of availability is linked to the competence test in section 13, and that competence must be assessed on the evidence before the court.

  • Where hearsay evidence admitted under section 65 forms a central part of the identification case against an accused, an error in its admission is likely to be fatal to the conviction and to require a new trial rather than a substituted verdict.

  • The Court of Criminal Appeal confirmed that McClellan CJ at CL's observations on the unavailability question were directed to the evidence at the first trial and did not bind the court at any retrial. Competence would need to be reconsidered afresh at the new trial in light of current evidence about the victim's mental capacity.

  • A near-expired non-parole period is not, of itself, a sufficient reason to decline to order a new trial. Where the only alternative is a directed acquittal and the evidence does not support that outcome, a new trial remains the appropriate order.

  • Prosecutions relying on section 65 hearsay evidence from victims with cognitive or memory impairments must carefully address the competence requirements in section 13, as the two analyses are closely related.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), sections 13, 65(2)(b), 65(2)(c), 66, 165

Cases:
No specific cases were extracted from the provided text.