AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 10 July 2018

R v Parker (No. 2)

[2018] NSWSC 1122

HomicideDrugs
EVIDENCE MAKER UNAVAILABLE BECAUSE DECEASED INSUFFICIENT CROWN’S ONUS NOT DISCHARGED EVIDENCE EVIDENCE ALLOWED EVIDENCE BUSINESS RECORD

Citation: R v Parker (No. 2) [2018] NSWSC 1122
Court: Supreme Court of NSW
Date: 10 July 2018
Judge(s): Adamson J

Background

The accused faced two charges: manslaughter of the deceased (alleged 26 June 2016) and supply of a prohibited drug (alleged 23 June 2016). The Crown's case was that the accused supplied the deceased with the heroin that killed him and either injected him or assisted him to inject, given the deceased's alleged inability to self-inject. The accused pleaded guilty to the supply charge and not guilty to manslaughter.

A key witness, Brendan Chick, had made a statement to police on 31 July 2016 but had since died. The Crown sought to tender his statement as hearsay evidence under s 65 of the Evidence Act 1995 (NSW). The outcome of that application would have significant flow-on consequences for how the Crown could frame the manslaughter charge.

The trial was due to commence the following day, requiring Adamson J to resolve several contested evidentiary questions pre-trial.

  • Whether the deceased witness Brendan Chick's police statement could be admitted under s 65(2) of the Evidence Act 1995 (NSW) as a hearsay representation made by an unavailable person
  • Whether tendency evidence about the deceased's practice of relying on others to inject him intravenously was admissible under s 97 of the Evidence Act 1995 (NSW)
  • Whether a clinical note made by a medical practitioner about the deceased constituted an admissible business record under s 69 of the Evidence Act 1995 (NSW)
  • Whether the Crown could open on manslaughter by criminal negligence, given the evidentiary position

Decision

Chick's statement (s 65 hearsay): Adamson J rejected the statement. The Crown argued that the acknowledgement in the statement's first paragraph, that the maker would be liable to prosecution for wilful falsehood, was sufficient to satisfy s 65(2)(c), which requires the representation to have been made in circumstances making it "highly probable" it was reliable. Her Honour held this was insufficient without more. The circumstances were notable: the statement was made five weeks after the events in question, the maker had been in the accused's room near the time of the death, and he may have feared his own criminal exposure. That potential self-interest tended to undermine rather than support reliability. The Crown had not discharged its burden of proof on the balance of probabilities.

Tendency evidence: The Crown sought to lead evidence from the deceased's sister and a friend that the deceased could not or would not self-inject and habitually relied on others to inject him. Adamson J admitted this evidence under s 97(1)(b), finding it had significant probative value given the central factual issue in the manslaughter trial. Although the Crown had failed to give the requisite notice under s 97, the court exercised its discretion to apply the tendency rule notwithstanding that failure.

Business record (clinical note): The ruling on the admissibility of a clinical note made by Ms Harvey of a consultation with the deceased on 15 June 2016 was deferred pending the return of a subpoena served on Ms Harvey. The question of her availability as a witness needed to be resolved first.

Criminal negligence manslaughter: Having rejected Chick's statement, the Crown accepted it could no longer support manslaughter on the basis of criminal negligence. Without Chick's evidence, there was no basis to establish the state of the deceased when he entered the accused's room, and so no foundation to prove that the accused had secluded the deceased while in a compromised state. The Crown confirmed it would put the manslaughter case solely on the basis of unlawful and dangerous act.

Orders Made

  • The statement of Brendan Chick dated 31 July 2016 was rejected.
  • The tendency rule was directed not to apply to the tendency evidence in specified paragraphs of the statements of Margaret McBride and Michael Ballard, and to the clinical note made by Sarah Harvey.
  • The tendency evidence from McBride and Ballard was admitted under s 97(1)(b).
  • Ruling on the admissibility of Harvey's clinical note under ss 48 and 69 was deferred pending return of the subpoena served on Ms Harvey.
  • The Crown formally noted that it would no longer pursue manslaughter by criminal negligence.

Key Takeaways

  • Under s 65(2)(c) of the Evidence Act 1995 (NSW), the mere presence of a standard police statement acknowledgement, that the maker would face prosecution for wilful falsehood, does not alone satisfy the requirement that the representation was made in circumstances making it "highly probable" it is reliable. The Crown must establish the circumstances affirmatively, on the balance of probabilities.
  • A witness's possible self-interest in the outcome of a police investigation is a relevant consideration in assessing whether the reliability threshold under s 65(2)(c) is met, consistent with the High Court's reasoning in Sio v The Queen (2016) 259 CLR 47.
  • Tendency evidence about a deceased person's habitual inability or unwillingness to self-inject intravenous drugs can carry significant probative value where the central factual issue is who performed or assisted an injection.
  • A failure to give notice of tendency evidence under s 97 does not automatically preclude admission; the court retains a discretion to direct that the tendency rule does not apply despite non-compliance.
  • The rejection of a single piece of hearsay evidence can have cascading consequences for how the Crown frames its case. Here, the exclusion of Chick's statement led directly to the Crown abandoning criminal negligence as a basis for manslaughter, because that basis depended entirely on establishing the deceased's compromised state at a specific time.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 48, 65, 69, 97, 101, 135, 137, 142, 166, 167, 168, 169, Dictionary, cl 4

Cases:
- Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
- Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
- Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
- Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52
- Munro v The Queen [2014] ACTCA 11
- Onassis v Vergottis [1968] 2 Lloyds Rep 403
- R v Afu; R v Caleo (No 15) [2018] NSWSC 245
- R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
- R v Evans [2009] 1 WLR 1999
- R v Miller [1983] 2 AC 161
- R v Taktak (1988) 14 NSWLR 226
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32