Citation: R v HG; R v WE (No 2) [2018] NSWSC 1178
Court: Supreme Court of NSW
Date: 31 July 2018
Judge(s): Bellew J
Background
The accused WE was the subject of a criminal prosecution in the Supreme Court. The Crown sought to lead evidence from an interview conducted between WE and two officers of the Australian Security Intelligence Organisation (ASIO) on 19 April 2016.
The Crown tendered an "Intelligence Report" containing a narrative of the interview. Objections were taken to portions of paragraphs 74 and 75 of that report, which recorded the impressions and opinions formed by the two ASIO officers (referred to as Officer A and Officer B) about the accused during the interview.
The remaining dispute centred on whether those passages constituted admissible lay opinion evidence under section 78 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether the impugned passages of the Intelligence Report constituted admissible lay opinion evidence under section 78 of the Evidence Act 1995 (NSW)
- Whether the "necessity" requirement in section 78(b) was satisfied, given that Officer A and Officer B could give direct evidence of their own observations
- Whether the decision in Partington v R [2009] NSWCCA 232 supported admission of the evidence in the circumstances of this case
Decision
Section 78 Admissibility:
Bellew J was not satisfied that the evidence fell within section 78 of the Act (at [10]). Section 78 permits lay opinion evidence where such opinion is necessary to obtain an adequate account or understanding of a person's perception of an event. The plurality in Lithgow City Council v Jackson (2011) 244 CLR 352 had construed "necessary" strictly, requiring that the opinion be the only way of obtaining an account of the relevant perception (at [9]).
Necessity not established:
The primary facts recorded in the Intelligence Report were stated in specific, concrete terms and were not so evanescent or complicated as to resist separate narration (at [11]). Critically, both Officer A and Officer B were capable of giving direct evidence of their own observations, and other unchallenged portions of their statements demonstrated this capacity (at [12]). Adducing the opinion evidence was therefore not the only means of conveying the officers' perceptions, and the test of necessity in section 78(b) was not met (at [12]).
Reliance on Partington:
The Crown's reliance on Partington v R was found to be at least partly misplaced (at [13]). The Crown had relied on observations by McClellan CJ at CL regarding evidence that a voice had been "raised in anger" as potentially admissible under section 78. Bellew J held that, read in full context, those observations did not establish that such evidence is always admissible as a matter of course; admissibility under section 78 remains fact-specific in each case (at [13]).
Orders Made
- The disputed opinion evidence in paragraphs 74 and 75 of the Intelligence Report is excluded.
Key Takeaways
- Under section 78(b) of the Evidence Act 1995 (NSW), lay opinion evidence satisfies the necessity requirement only where adducing the opinion is the sole means of obtaining an adequate account of the witness's perception (at [9]).
- Where witnesses are able to give direct evidence of their own observations, and other parts of their statements demonstrate that capacity, the necessity threshold for lay opinion evidence is not met (at [12]).
- The fact that primary facts are recorded in specific, concrete terms within a document tends against a finding that they are too evanescent or complicated to be separately narrated (at [11]).
- Partington v R does not stand for the proposition that impressionistic opinion evidence (such as that a voice was raised in anger) is always admissible under section 78; admissibility is determined on the particular facts of each case (at [13]).
- The Crown's interest in giving the jury a complete picture of an interviewing officer's impressions of an accused does not of itself satisfy the necessity requirement in section 78(b) (at [10]-[12]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36; (2011) 281 ALR 223
- Partington v R [2009] NSWCCA 232; 197 A Crim R 380
- R v Hillier (2007) 228 CLR 618; [2009] HCA 13