Citation: R v Tabbah; R v Tiriaki (No 1) [2014] NSWSC 564
Court: Supreme Court of New South Wales
Date: 9 April 2014
Judge(s): Schmidt J
Background
The decision arose during criminal proceedings in which evidence was sought to be led from a witness, Mrs Hedges, about a threat made against a person named Mathew Hedges via Facebook. The threat appeared as a written post on Facebook, which Mrs Hedges had never personally seen.
Mrs Hedges had learned of the threat from her daughter Prue, who had read the Facebook post directly. Mrs Hedges' knowledge of the threat came entirely from what her daughter had told her, not from any personal observation of the post.
The Crown sought to question Mrs Hedges about the threat. Defence counsel objected on relevance and hearsay grounds. The relevance objection was not pressed, but the hearsay objection remained for determination.
Legal Issues
- Whether Mrs Hedges' evidence about the Facebook threat constituted hearsay under the Evidence Act 1995 (NSW)
- Whether the evidence was first-hand or second-hand hearsay, and why that distinction mattered
- Whether the exception to the hearsay rule in s 66 of the Evidence Act applied so as to render the evidence admissible
Decision
Issue 1: Whether the evidence was hearsay
Schmidt J held that Mrs Hedges' evidence was unambiguously hearsay. The Facebook post was a representation (an implied or express statement, including one in writing) asserting an intention to harm Mathew Hedges. Mrs Hedges had not perceived the post herself and could only recount what her daughter had told her about it.
Issue 2: First-hand or second-hand hearsay
The court confirmed that the daughter, having read the post directly, would be giving first-hand hearsay if called to give evidence about it. Mrs Hedges, however, would be giving second-hand hearsay: her knowledge derived not from perceiving the representation but from a further representation made by her daughter. Schmidt J cited Vickers v R [2006] NSWCCA 60 for the proposition that the Evidence Act limits admissible hearsay to first-hand hearsay because second-hand hearsay carries inherent unreliability, affected by the honesty and accuracy of the intermediary's recollections.
Issue 3: Whether s 66 applied
Section 66 of the Evidence Act provides an exception to the hearsay rule in criminal proceedings where the maker of a previous representation is available to give evidence. The Crown argued that this exception applied because the daughter was to be called. Schmidt J rejected that argument. Section 66 is confined to first-hand hearsay falling within s 62, meaning representations made by someone with personal knowledge based on their own perception. The person who posted the threat on Facebook was not being called. The daughter's evidence could speak to what she personally perceived when reading the post. Mrs Hedges, however, had perceived nothing about the Facebook threat itself. Her perception extended only to what her daughter had told her, making her evidence second-hand and outside the reach of s 66.
Orders Made
- Evidence not admissible.
Key Takeaways
- Under the Evidence Act 1995 (NSW), the exceptions to the hearsay rule in Division 2 of Part 3.2 apply only to first-hand hearsay, as defined in s 62: representations made by a person with personal knowledge based on their own perception of the asserted fact.
- Second-hand hearsay remains inadmissible even where an intermediate witness (here, the daughter) is to be called, because s 66 attaches to the original maker of the representation, not to the person who heard an account of it secondhand.
- A written Facebook post constitutes a "representation" for the purposes of the hearsay rule, falling within the dictionary definition in the Evidence Act as an express or implied representation in writing.
- The Supreme Court applied the reasoning from Vickers v R [2006] NSWCCA 60, confirming that the statutory exclusion of second-hand hearsay reflects a deliberate policy choice based on the inherent unreliability that arises when evidence passes through more than one person's recollection.
- "Perception" under s 62(2) requires that the person witnessed or sensed the original representation directly; being told about it by another person does not constitute personal knowledge of the asserted fact.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352
- Vickers v R [2006] NSWCCA 60