Citation: R v Lewis (No 2) [2018] NSWDC 273
Court: District Court of New South Wales
Date: 19 September 2018
Judge(s): Neilson DCJ
Background
The accused stood trial on charges connected to an explosion at a clandestine drug laboratory in East Kurrajong on or around 28-29 December 2015. A key factual dispute concerned the accused's whereabouts that evening, with his electronically recorded police interview placing him at home, asleep, for the relevant period.
The Crown sought to call the accused's de facto wife, Ms Fauvette, to give evidence about when he was actually at home. Ms Fauvette had given a statement to police on 19 January 2016, approximately three weeks after the explosion. When called at trial, she successfully applied under section 18 of the Evidence Act 1995 to be excused from giving evidence as the non-compellable de facto spouse of the accused, having reconciled with him approximately 18 months before the trial.
Following that ruling, the Crown served notice under section 67 of the Evidence Act seeking to tender the relevant paragraphs of Ms Fauvette's 2016 statement as hearsay evidence under section 65. The accused opposed the tender and separately sought exclusion under section 137.
Legal Issues
- Whether a witness who obtains a favourable ruling under section 18 of the Evidence Act (non-compellability as a spouse or de facto partner) becomes a person "not available to give evidence" within the meaning of clause 4(g) of the Dictionary to the Act, thereby engaging section 65(2).
- Whether the Crown established the additional admissibility requirements under section 65(2)(b), (c) and (d).
- Whether the evidence should nevertheless be excluded under section 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused.
Decision
Issue 1: Availability under section 65 following a section 18 ruling
The court held that a witness who successfully invokes section 18 to resist giving evidence against a spouse or de facto partner becomes a person not available to give evidence under clause 4(g) of the Dictionary to the Evidence Act (at [5], [8]). The earlier District Court decision in R v B.O. [2012], which had reached the opposite conclusion, has not been followed in subsequent authority (at [6]). The court drew on the Victorian Court of Appeal decision in Fletcher v The Queen [2015] VSCA 146 and observations by Johnson J in R v A2; R v KM; R v Vaziri (No 4) [2015] NSWSC 1306, noting that although Johnson J's remarks were strictly obiter, they were entitled to considerable weight (at [7]). The weight of authority clearly favoured the Crown's position (at [8]).
Issue 2: Requirements under section 65(2)
The court found that Ms Fauvette's representations satisfied section 65(2)(b), (c) and (d) (at [19]). The statement was made within three weeks of the incident, while the events were likely still fresh in memory, and the circumstances made it highly probable the representations were reliable (at [16]-[17]). The court also noted that the statement may have been against Ms Fauvette's own interests, as it had the potential to deprive her of the accused's financial support if he were convicted, which further supported reliability (at [18]).
Issue 3: Section 137 exclusion
The court rejected the accused's section 137 objection. The inability to cross-examine a witness whose prior representations are admitted under section 65 following a section 18 ruling is a necessary and accepted feature of that regime, not an independent reason for exclusion (at [21]). Directions to the jury about the unsworn and untested nature of the statement would adequately address the risk of misuse, and the jury is presumed to follow such directions (at [22]). No prior or subsequent inconsistent statements were put forward to suggest Ms Fauvette would have departed from her account if cross-examined (at [23]). The probative value of the evidence substantially outweighed any risk of unfair prejudice (at [23]).
Orders Made
- Ms Fauvette's prior representations were admitted, with paragraph 12 of her statement excised on the basis that it did not advance the Crown case and contained unreliable hearsay about media reports.
Key Takeaways
- A witness who successfully invokes section 18 of the Evidence Act 1995 to resist giving evidence against a spouse or de facto partner is treated as "not available to give evidence" under clause 4(g) of the Dictionary, thereby engaging the hearsay exception in section 65(2) (at [5], [8]).
- The District Court declined to follow R v B.O. [2012] NSWDC 195, instead preferring the reasoning of the Victorian Court of Appeal in Fletcher v The Queen [2015] VSCA 146 and the (albeit obiter) views of Johnson J in R v A2; R v KM; R v Vaziri (No 4) [2015] NSWSC 1306 (at [6]-[8]).
- Inability to cross-examine a witness whose prior statement is admitted under section 65 following a section 18 ruling is an inherent consequence of that statutory framework, not a freestanding basis for exclusion under section 137 (at [21]).
- Where jury directions address the unsworn, untested character of admitted hearsay representations, the court's presumption that juries follow directions is available to answer a prejudice argument under section 137 (at [22]).
- Factors supporting reliability under section 65(2) can include the proximity in time between the events and the making of the representation, the freshness of memory at the time, and any circumstance suggesting the maker had no motive to fabricate (at [16]-[18]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Fletcher v The Queen [2015] VSCA 146
- R v A2; R v KM; R v Vaziri (No 4) [2015] NSWSC 1306
- R v B.O. [2012] NSWDC 195; (2012) 15 DCLR (NSW) 317