R v Meakin (No. 1) [2016] NSWSC 1006

Citation: R v Meakin (No. 1) [2016] NSWSC 1006
Court: Supreme Court of New South Wales
Date: 21 July 2016
Judge(s): Davies J

Background

The accused stood trial for offences arising from a hit-and-run incident on 21 February 2014 in which the deceased was struck and killed by a motor vehicle. It was not in dispute that the accused was driving the vehicle involved. The central issues at trial concerned the accused's knowledge and intent.

The Crown called a personal friend of the accused, Ms Meredith, as a witness. She had known the accused for approximately ten years and had two relevant conversations with him: one on the day of the incident, and a second some days later when she informed him that the man killed was the same man with whom he had previously had a physical altercation.

The defence sought to cross-examine Ms Meredith to adduce evidence from both conversations, as well as her opinion about the accused's reaction when she disclosed the identity of the deceased. The Crown opposed portions of that evidence, prompting a voir dire ruling on admissibility.

Legal Issues

Whether a statement made by the accused on the day of the incident, containing an implied admission alongside exculpatory material, was admissible as an admission under the Evidence Act 1995 (NSW)
Whether that same statement was alternatively admissible under section 66(2) of the Evidence Act as a hearsay exception applying to representations made while events were fresh in the maker's memory
Whether Ms Meredith's opinion that the accused appeared "shocked" constituted admissible lay opinion evidence under section 78 of the Evidence Act
Whether observable physical descriptions of the accused's reaction were admissible, and where the line fell between permissible description and impermissible conclusion

Decision

Issue 1: Implied admission and section 81

The accused's statement on the day of the incident ("I don't know what I hit") contained an implied admission. However, Davies J held that because it was not disputed at trial that the accused drove the vehicle that struck and killed the deceased, the implied admission was not adverse to the accused's interest in the outcome of the proceedings (at [8]). It therefore did not constitute an "admission" within the statutory definition, and section 81 did not apply.

Issue 2: Admissibility under section 66(2)

Davies J held that the representation was nonetheless admissible under section 66(2) of the Evidence Act as an exception to the hearsay rule (at [9]-[10]). Two conditions are required: the maker of the representation must have been or be called to give evidence, and the occurrence of the asserted fact must have been fresh in the maker's memory when the representation was made. Both conditions were satisfied. Senior counsel confirmed the accused would give evidence, satisfying the first condition (at [10]). The representation was made later on the same day as the incident, and the Crown did not contend otherwise, satisfying the second condition (at [11]). The evidence of the conversation at the accused's home that afternoon was accordingly permitted.

Issue 3: Ms Meredith's opinion that the accused was "shocked"

Davies J rejected the opinion evidence. Before reaching section 78, the court considered whether the evidence was relevant under section 55, which requires that evidence, if accepted, could rationally affect the assessment of the probability of a fact in issue (at [19]). The key fact in issue was whether the accused intentionally struck the deceased with his vehicle, with a subsidiary issue being whether he knew the deceased was the man from the earlier altercation. The court found that Ms Meredith's conclusion about the accused's state of knowledge could not rationally affect the assessment of that probability (at [20]). Her opinion amounted to placing herself inside the accused's mind to guess at his state of knowledge, which went beyond permissible lay opinion (at [20]).

Issue 4: Permissible observations versus impermissible conclusions

Davies J drew a clear line between factual observations and interpretive conclusions. Ms Meredith was permitted to describe what she physically observed, including that the accused went white and had a blank look on his face, because such descriptions are analogous to saying someone looked tired and resist further decomposition into separate factual elements (at [22]-[23]). Stating that the accused was "shocked," however, was an attempt to characterise an emotion or guess at an internal state, and was excluded (at [22]-[24]). It is for the jury, not a witness, to draw inferences from proved observable facts about an accused's state of mind (at [23]).

Orders Made

Leave granted to the accused to adduce evidence of the conversation on the day of the offences (as described at paragraph [4] of the judgment)
Leave granted to the accused to adduce evidence of the later conversation and Ms Meredith's observations of the accused (as described at paragraph [15] of the judgment)
Ms Meredith's statement that the accused was "shocked" was excluded

Key Takeaways

Under section 66(2) of the Evidence Act 1995 (NSW), a representation is admissible notwithstanding the hearsay rule where the maker has been or will be called to give evidence and the relevant events were fresh in the maker's memory at the time of the representation. A same-day statement made hours after an incident readily satisfies the freshness requirement (at [10]-[11]).
Where an implied admission is not adverse to an accused's interest in the outcome of proceedings because the underlying fact is not in dispute at trial, it does not meet the statutory definition of "admission" and the hearsay exception in section 81 is unavailable (at [8]).
A witness's opinion about what another person knew or felt, drawn from observing that person's reaction, is not admissible as lay opinion where it cannot rationally affect the assessment of a fact in issue under section 55 of the Evidence Act. Such evidence amounts to guessing at another person's internal state (at [19]-[20]).
The Supreme Court distinguished between observable physical descriptions, such as a person going white or having a blank look, and characterisations of emotional states, such as being "shocked." The former may be admissible where they resist reduction into more discrete factual elements; the latter is a conclusion that invades the jury's role (at [22]-[23]).
Inference-drawing from proved observable facts about an accused's state of mind is a function reserved for the jury, not witnesses (at [23]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Crisologo v R (1997) 99 A Crim R 178
- R v Carter; Exp Gray [1991] Tas R 174
- R v Parkes [2003] NSWCCA 12; (2003) 147 A Crim R 450
- Sydleman v Beckwith (1875) 43 Conn 12