Citation: R v Briggs (No 3) [2014] NSWSC 852
Court: Supreme Court of New South Wales
Date: 3 June 2014
Judge: Button J
Background
The accused faced trial for allegedly inflicting fatal violence on the deceased on 24 December 2012. A witness, who had been near the scene, gave evidence of observing a man outside a house in Armidale while hearing yelling, screaming, smashing, and thumping sounds coming from inside.
The witness's statement described specific observations about the man: he had a puffed-out chest, was breathing heavily, and was talking loudly. Based on those observations, the witness also stated that he "would describe this male person as aggressive based on his demeanour." The Crown proposed to lead that characterisation as part of the witness's evidence at trial.
Defence counsel objected to the word "aggressive" and the surrounding characterisation, prompting the court to conduct a voir dire (a preliminary hearing to determine admissibility) to resolve whether that portion of the statement was admissible.
Legal Issues
- Whether the witness's description of the accused as "aggressive" constituted opinion evidence subject to the exclusionary rule in s 76 of the Evidence Act 1995 (NSW)
- Whether the evidence fell within the lay opinion exception in s 78 of the Act, specifically whether it was "necessary to obtain an adequate account or understanding" of the witness's perception of the matter or event (s 78(b))
Decision
Button J accepted that s 78(a) was satisfied: the opinion was based on what the witness saw, heard, or otherwise perceived. The contest turned entirely on s 78(b), namely whether the opinion evidence was "necessary" to convey an adequate account of what the witness had perceived.
The Crown argued that the underlying primary observations, while available, did not fully capture the import of what the witness had perceived about the accused's demeanour. The Crown also submitted that it would be anomalous if lay opinion evidence were more readily admissible where a witness could recall fewer underlying details.
Button J found force in that submission but concluded it was outweighed by the High Court's analysis in Lithgow City Council v Jackson [2011] HCA 36. The plurality in that case had emphasised, repeatedly, that the foundation for admitting lay opinion evidence under s 78 is the practical difficulty a witness faces in identifying, recollecting, or expressing the multitude of primary observations that give rise to their overall impression. The word "necessary" in s 78(b) refers to a relationship internal to the witness's own evidence, not to whether the opinion would be desirable or useful for the jury.
Here, no such difficulty existed. The witness's statement, made within two hours of the events, set out three or four specific primary observations that led him to conclude the accused was aggressive. Those underlying facts were concrete and expressible. Button J found that it was desirable, but not necessary, to receive the lay opinion, and accordingly excluded the contested sentence. The Crown remained free to submit to the jury that they could draw the inference of aggression from the primary observations.
Orders Made
The court ruled that oral evidence corresponding to the third sentence in paragraph 5 of the witness's statement of 24 December 2012 (characterising the accused as "aggressive based on his demeanour") would not be permitted at trial.
Key Takeaways
- Under s 78(b) of the Evidence Act 1995 (NSW), the word "necessary" sets a threshold higher than mere desirability or usefulness; the opinion must be required to give an adequate account of the witness's perception.
- The High Court's reasoning in Lithgow City Council v Jackson [2011] HCA 36 confirms that the rationale for the lay opinion exception is the practical impracticality of articulating the multitude of primary observations underpinning a perception, not simply the communicative convenience of stating a conclusion.
- Where a witness can identify, remember, and describe the specific primary observations that formed the basis of an opinion, the necessity test in s 78(b) is unlikely to be met.
- The Supreme Court held that the word "necessary" in s 78(b) refers to a relationship internal to the witness's evidence, between their perceptions and their opinion, and is not analogous to a best-evidence rule.
- Excluding a lay opinion characterisation does not preclude the jury from drawing an equivalent inference from the primary facts themselves, and the trial can proceed on that basis.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 76, 78, 79
Cases
- Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352
- Cornwell v Green (1823) 10 Serg & Rawle 14
- Sydleman v Beckwith (1875) 43 Conn 9