Citation: R v Rogerson; R v McNamara (No 19) [2016] NSWSC 74
Court: Supreme Court of New South Wales
Date: 15 February 2016
Judge: Bellew J
Background
This decision is one in a series of interlocutory rulings made during the murder trial of two accused. The Crown sought to introduce evidence from a witness, Hubert Sha, who had been searching for the deceased in the Padstow area around the time of the deceased's disappearance.
During that search, Sha encountered two Asian males near where the deceased's car had been found. Sha's statement recorded that these men told him they had earlier been involved in a drug deal with the deceased, that the deceased had left his car and belongings with them, and had departed in another vehicle. Part of the conversation had been conducted in Mandarin, and Sha, who speaks only Cantonese and English, acknowledged he did not understand the entirety of what was said.
The Crown sought to lead the contents of Sha's statement as evidence of those representations under the hearsay exception in s 65 of the Evidence Act 1995 (NSW), which applies where the person who made the prior representation is not available to give evidence. The accused McNamara's counsel objected to the tender.
Legal Issues
- Whether the two Asian males could be regarded as persons who were "not available" to give evidence within the meaning of s 65 and Part 2, s 4 of the Dictionary to the Evidence Act 1995 (NSW)
- Whether, as a threshold matter, a person must be positively identified before a court can assess whether that person is "not available"
- If the hearsay exception were available, whether the evidence should nonetheless be excluded under s 137 of the Evidence Act on the ground that its probative value was outweighed by the danger of unfair prejudice
Decision
The Crown called the investigating detective to establish that the two men were identifiable as persons named Chan and Fung, and that both had left Australia and not returned. Under cross-examination, however, the detective conceded he could not positively identify the men as Chan and Fung. He described his view as a "strong suspicion," and went no further.
Bellew J held that positive identification of a person is a necessary preliminary step before the question of that person's availability under s 65 can even be addressed. As a matter of common sense, a court cannot assess whether a person is unavailable unless it first knows who that person is. The detective's strong suspicion fell substantially short of satisfying that threshold.
The Crown argued that an inability to positively identify the men would in fact strengthen, rather than undermine, its unavailability argument. Bellew J rejected that submission. Because the identity of the two men could not be positively established, it was not open to the Crown to invoke s 65, and the evidence was rejected.
Although the s 137 question did not require determination, Bellew J observed that, had s 65 been available, he would have been minded to exclude the evidence under s 137 in any event. Given that Sha himself acknowledged he did not understand most of what was said in the conversation, the risk of unfair prejudice would likely have outweighed any probative value.
Orders Made
No formal orders were made in this decision. The evidence contained in paragraph 23 of Sha's statement was rejected.
Key Takeaways
- Before a court can assess whether a person is "not available" to give evidence under s 65 of the Evidence Act 1995 (NSW), that person must first be positively identified. A strong suspicion as to identity is insufficient to meet this threshold.
- Under s 65 and the unavailability provisions in Part 2, s 4 of the Dictionary, the inability to identify the maker of a prior representation does not enlarge the hearsay exception; it forecloses reliance on it entirely.
- Bellew J signalled, without deciding, that evidence of a conversation conducted predominantly in a language the witness did not understand would face serious difficulty under s 137, given the limited probative value and the real danger of unfair prejudice arising from partial comprehension.
- The decision illustrates that the Crown bears the burden of establishing each element required to invoke a hearsay exception, including the foundational question of who the maker of the representation was.
- Obiter observations on s 137 carry no binding force, but they indicate how the court was inclined to weigh language and comprehension difficulties against the probative value of out-of-court representations.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 65 (hearsay exception: criminal proceedings where maker not available)
- Evidence Act 1995 (NSW), s 67 (notice requirements)
- Evidence Act 1995 (NSW), s 137 (exclusion of prejudicial evidence in criminal proceedings)
- Evidence Act 1995 (NSW), Dictionary, Part 2, s 4 (unavailability of persons)
Cases
No cases were cited in the judgment.