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Supreme Court 16 March 2017

R v Brooks (No 3)

[2017] NSWSC 261

Assault & violence
CRIMINAL LAW EVIDENTIARY RULING HEARSAY WHERE VICTIM CALLED TO GIVE EVIDENCE WHETHER CREATES UNFAIR PREJUDICE EVIDENCE ALLOWED

Citation: R v Brooks (No 3) [2017] NSWSC 261
Court: Supreme Court of New South Wales
Date: 16 March 2017
Judge(s): Hamill J

Background

The accused stood trial for allegedly stabbing two men during a street altercation in Toukley. The prosecution alleged two closely connected incidents: one stabbing outside a pizza shop and a second in a nearby vacant lot. The accused was identified as the man wearing a red shirt or singlet on the night.

The alleged victim of the second stabbing had already been called as the prosecution's first eyewitness and excused. He gave evidence about the facts of the incident but was never asked, by either party, whether he had spoken to a security guard immediately after being stabbed.

The prosecution then sought to call a security guard, Mr Bailey, who stated that a man with a stab wound had approached him shortly after the incident. That man told him he had been stabbed by "two guys" and, in response to a specific question, confirmed one of them was "the guy in the red shirt." The accused objected to this evidence being admitted.

  • Whether Mr Bailey's evidence of the alleged victim's statement constituted inadmissible hearsay under s 59 of the Evidence Act 1995 (NSW).
  • Whether the exception in s 66 of the Evidence Act applied, given that the alleged victim had been called to give evidence but had not himself given any evidence of making the representation.
  • Whether admitting the evidence through Mr Bailey, rather than through the maker of the statement, created unfair prejudice to the accused so as to warrant exclusion under ss 135 or 137 of the Evidence Act.

Decision

Hamill J ruled the evidence admissible. The court confirmed that s 66 of the Evidence Act is satisfied where the maker of the previous representation has been called in the proceedings, even if that person gave no evidence of making the representation. The section's use of the disjunctive "or" in subs (2) expressly permits the evidence to be given either by the maker or by someone who witnessed the representation being made. There is no requirement that the maker actively testify to having made the statement.

The court drew support from a restricted NSW Court of Criminal Appeal decision, which confirmed that s 66 does not require the complainant to remember having made a complaint. The Victorian Court of Appeal decisions in Singh v The Queen and Griffin v The Queen further supported this construction. The High Court's earlier decision in Breen v The Queen, while predating the uniform evidence legislation and decided in a different doctrinal context, was also noted as consistent with this approach.

On the question of unfairness, Hamill J accepted that, in principle, the operation of s 66 could in some cases produce unfairness warranting exclusion under ss 135 or 137. However, the court did not accept that this was such a case. The underlying facts asserted in Mr Bailey's account, including that the alleged victim was stabbed and that the man in the red shirt was involved, had already been placed before the jury through the alleged victim's own testimony. Defence counsel also retained the ability to highlight to the jury that the alleged victim himself gave no evidence of having spoken to the security guard.

The court noted that any concern about reliability could be addressed by a direction under s 165 of the Evidence Act warning the jury that hearsay evidence of this kind may be unreliable. The accused indicated he would request such a warning, and the court indicated it was inclined to give one, though that determination was deferred.

Orders Made

• The evidence is admissible.

Key Takeaways

  • Under s 66 of the Evidence Act 1995 (NSW), a previous representation may be proved by a person who witnessed it being made, without the maker of the representation being required to give evidence of it, provided the maker has been called in the proceedings and the asserted fact was fresh in the maker's memory at the time.
  • The disjunctive "or" in s 66(2) is central: it expressly contemplates that evidence of the representation may be given by the maker, by a witness to the making of it, or by both.
  • The NSW Court of Criminal Appeal (in a restricted judgment) and the Victorian Court of Appeal in Singh v The Queen and Griffin v The Queen have each confirmed this interpretation, including in circumstances where the maker had no memory of making the complaint.
  • While ss 135 and 137 could, in principle, warrant exclusion of evidence admitted under s 66 where its operation produces real unfairness, the bar for establishing such unfairness is high. The absence of cross-examination of the maker on the specific representation is not, of itself, sufficient.
  • A reliability warning under s 165 of the Evidence Act remains available where hearsay evidence is admitted under s 66, and its availability is relevant to the overall fairness assessment.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 59, 66, 135, 137, 165

Cases
- Restricted judgment [2016] NSWCCA 92
- Breen v The Queen (1976) 180 CLR 233; [1976] HCA 15
- Griffin v The Queen [2011] VSCA 304
- Grills v The Queen [1996] HCA Trans 273; (1996) 70 ALJR 905
- IMM v The Queen [2016] HCA 14
- R v MSK and MAK (2004) 61 NSWLR 204; [2004] NSWCCA 308
- Singh v The Queen [2011] VSCA 263