Citation: R v Tabbah; R v Tiriaki (No 2) [2014] NSWSC 565
Court: Supreme Court of NSW
Date: 9 April 2014
Judge: Schmidt J
Background
The two accused faced trial for the alleged murder of Mathew Hedges. The Crown alleged various drugs and drug paraphernalia were found at Hedges' home on the night he was killed. One accused, Tiriaki, denied any involvement in the killing and maintained that Hedges was a drug dealer with multiple enemies who had reason to want him dead.
During the trial, the victim's mother gave evidence about two conversations. In the first, a friend of her son named Corey Marks told her he had spoken to a man called "Omar", who had been speaking to the Alammedines, and that they believed drugs were being kept at her home. In the second conversation, she relayed this to her son, and he told her he was not worried.
The Crown objected to questions asked of the mother about these conversations. The court was required to rule on whether the evidence was admissible.
Legal Issues
- Whether the evidence of what Corey Marks told Mrs Hedges was inadmissible hearsay under s 59 of the Evidence Act 1995 (NSW)
- Whether the evidence could be admitted under s 60 of the Evidence Act for a non-hearsay purpose
- Whether Mathew Hedges' response to his mother constituted an "admission" within the meaning of the Evidence Act, which would have excluded it from the s 60 exception in criminal proceedings
Decision
Issue 1: Hearsay and s 59
The court accepted that what Corey Marks told Mrs Hedges was hearsay. Under s 59 of the Evidence Act, evidence of a previous representation is not admissible to prove the truth of a fact the maker intended to assert. The Crown's objection rested on this basis.
Issue 2: Admissibility under s 60 for a non-hearsay purpose
Counsel for Tiriaki argued the evidence was not tendered to prove the truth of what Corey Marks said about the Alammedines' beliefs. Rather, the purpose was to establish what Mathew Hedges then said to his mother in response, from which an inference could be drawn that he was keeping drugs at the house. Under s 60, the hearsay rule does not apply where evidence is admitted for a purpose other than proving an asserted fact. Schmidt J accepted this reasoning and ruled the evidence relevant and admissible for that purpose.
Issue 3: Whether Hedges' statement was an "admission"
The court considered whether s 60(3) excluded the evidence because it involved an admission. The Evidence Act defines an admission as a previous representation made by a party to the proceedings that is adverse to that party's interests. Mathew Hedges was the deceased victim, not a party to the proceedings. The court therefore concluded that s 60(3) did not apply, and the exclusion for admissions in criminal proceedings was not engaged.
Orders Made
- Evidence admissible.
Key Takeaways
- Section 60 of the Evidence Act 1995 (NSW) allows otherwise hearsay evidence to be admitted where the tendering party establishes a genuine non-hearsay purpose, even in criminal proceedings.
- The exclusion under s 60(3) for admissions in criminal proceedings applies only to representations made by a person who is a party to the proceeding. A deceased victim is not a party, so the exclusion does not apply to their statements.
- Where evidence is admitted under s 60 for a non-hearsay purpose, any inference to be drawn from that evidence remains a question for the jury.
- The court's ruling was limited to admissibility; whether the jury would ultimately draw the inference that the victim was a drug dealer was left entirely open.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Not stated