Citation: R v Payam (No.2) [2015] NSWSC 1820
Court: Supreme Court of New South Wales
Date: 9 December 2015
Judge(s): Acting Justice Mathews
Background
The offender pleaded guilty to murder and was before the Supreme Court for sentencing. During those proceedings, the Crown sought to rely on evidence from two witnesses, both cousins of the deceased, who said the deceased had told them on various occasions that the offender had threatened to kill him.
The Crown tendered this evidence to support the proposition that the murder was premeditated and planned in advance. Because the deceased was unavailable to give evidence himself, the statements attributed to him were hearsay and prima facie inadmissible. A voir dire hearing was conducted on the admissibility question.
The offender's counsel objected, and Acting Justice Mathews ruled the evidence inadmissible. These reasons elaborate on that ruling.
Legal Issues
- Whether the deceased's out-of-court statements about threats fell within an exception to the hearsay rule under s 65 of the Evidence Act 1995
- Specifically, whether the representations were made in circumstances making it "highly probable" that they were reliable, as required by s 65(2)(c)
- Whether s 65(2)(b) (representation made shortly after the asserted fact) could apply
Decision
The Crown conceded that s 65(2)(b) had no application because there was no evidence establishing that the deceased made his statements shortly after the alleged threats occurred. The admissibility argument therefore turned entirely on s 65(2)(c), which requires that the circumstances surrounding the making of the representation make it "highly probable" that the representation is reliable.
Acting Justice Mathews applied the approach confirmed in R v Ambrosoli [2002] NSWCCA 386, which directs the court to focus on the circumstances in which the representation was made, rather than on the reliability of the facts asserted within it. Both counsel agreed this was the correct framework. The court also accepted that "bootstraps" reasoning was impermissible: the fact that the offender did ultimately murder the deceased could not itself be used to support the reliability of the deceased's earlier statements that the offender had threatened him.
Several factors combined to defeat the s 65(2)(c) exception. Although the deceased allegedly told one witness he had written to his lawyer and the police about the threats, no such letter existed. The one police complaint on record related to a specific incident on 7 March 2014, not to any broader pattern of threats. There was no objective evidence corroborating the reliability of the representations. Further, the context of the case involved an acrimonious separation, a new relationship, and an apprehended violence order taken out against the deceased by the offender and others. The court accepted that such circumstances can give rise to allegations that may not be accurate, which weighed against reliability.
In the case of the second witness, an additional concern arose from his own acknowledged uncertainty about the timing and content of his conversations with the deceased. His candid admission about his poor memory gave the court further reason to doubt the reliability of his account.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 65(2)(c) of the Evidence Act 1995, a hearsay representation by an unavailable person is only admissible if the circumstances of its making render it "highly probable" that the representation is reliable. A plausible context is not sufficient.
- Following R v Ambrosoli, the reliability assessment focuses on the circumstances surrounding the making of the representation, not on whether the facts asserted within it turned out to be true.
- "Bootstraps" reasoning is not permitted: the fact that an accused did ultimately commit the act alleged in a threat cannot, of itself, support the reliability of the deceased's prior statement that the threat was made.
- Where the background involves acrimonious relationship breakdown and competing claims between the parties, that context may itself undermine the reliability of representations made by one party about the other.
- A witness's poor recollection of the details and timing of conversations in which representations were made constitutes an independent basis for doubting the reliability of those representations.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 65
Cases
- R v Ambrosoli [2002] NSWCCA 386