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Supreme Court 8 August 2018

R v Rogers

[2018] NSWSC 1216

Homicide
EVIDENCE HEARSAY

Citation: R v Rogers [2018] NSWSC 1216
Court: Supreme Court of New South Wales
Date: 8 August 2018
Judge(s): Lonergan J

Background

The accused was charged with the murder of his wife at Milperra between 12 and 13 September 2015. He raised a partial defence of substantial impairment of mind and offered to plead guilty to manslaughter on that basis.

Before trial, a dispute arose about the admissibility of statements the deceased had made to a doctor in the emergency department at Bankstown Hospital on 22 to 23 August 2016. She had presented there after taking an overdose of Temazepam approximately eight hours before the medical assessment. The account she gave to the treating doctor included representations about how she came to take the tablets and the accused's involvement in that event.

The Crown served a notice under section 67 of the Evidence Act 1995 (NSW) and sought to lead the representations at trial. Lonergan J ruled on the admissibility issue pre-trial and provided these formal reasons for the ruling.

Legal Issues

  • Whether the deceased's representations to the emergency department doctor were admissible under section 65(2)(b) of the Evidence Act 1995 (NSW), which applies where a representation is made when or shortly after the asserted fact occurred and in circumstances making fabrication unlikely.
  • Whether the representations were admissible under section 65(2)(c), which applies where the circumstances make it highly probable the representation is reliable.
  • Whether the representations fell within the exception in section 66A, which covers contemporaneous representations about a person's health, feelings, sensations, intention, knowledge or state of mind.

Decision

Issue 1: Section 65(2)(b) (shortly after the fact, unlikely to be fabricated)

Lonergan J found the Crown had not met its onus under section 65(2)(b). The eight-hour gap between the events described and the representation being made did not qualify as "shortly after the asserted facts occurred" in all the circumstances (at [35]). The court also accepted that, given the context of an extra-marital relationship and a suicide attempt, reliability was a genuine issue and the Crown had not persuaded the court that fabrication was unlikely (at [35]).

Issue 2: Section 65(2)(c) (highly probable the representation is reliable)

The court found the Crown had equally failed to meet its onus under section 65(2)(c). The circumstances identified by counsel for the accused, including the deceased's potential motive to cast the accused in a negative light and herself in a favourable one, and the fact that the account was given some hours after a significant overdose, meant the Crown could not establish that the representation was highly probably reliable (at [36]).

Issue 3: Section 66A (contemporaneous statement about health, state of mind, etc.)

The court rejected the Crown's argument that section 66A applied. The Crown had sought to read the term "health" broadly to cover a narrative history given to a medical practitioner about how a patient came to present with a drug overdose, and also argued the statements were about the deceased's "knowledge". Lonergan J declined to adopt that expansive interpretation and held that the discrete portion of the record in dispute did not amount to a contemporaneous statement about the deceased's health, feelings, sensations, intention, knowledge or state of mind within the meaning of section 66A (at [37]).

Orders Made

  • The aspect of the emergency department record in issue is not to be led from the witness.

Key Takeaways

  • Section 65(2)(b) of the Evidence Act 1995 (NSW) imposes a double requirement: the representation must have been made when or shortly after the asserted fact occurred, and in circumstances making fabrication unlikely. An eight-hour delay between events and the recording of a hospital representation did not satisfy the temporal limb in the circumstances of this case (at [35]).

  • The onus under sections 65(2)(b) and (c) rests on the Crown to point to circumstances that positively support reliability or make fabrication unlikely. It is insufficient for the Crown to argue merely that there are no obvious indicators of unreliability (at [26], [35]-[36]).

  • Section 66A applies to contemporaneous representations about a person's health, feelings, sensations, intention, knowledge or state of mind. The Supreme Court declined to extend that exception to cover a narrative account given to an emergency department doctor about how a patient came to be admitted, including descriptions of another person's alleged conduct (at [37]).

  • Expanding the concept of "knowledge" in section 66A to encompass a person's recollection or account of past events would risk effectively abrogating the hearsay rule, a result courts have consistently sought to avoid, as illustrated by the approach in R v Hannes [2000] NSWCCA 503 (at [32]).

  • Contextual factors surrounding a representation, including an acrimonious relationship breakdown, a possible motive to attribute blame, and the speaker's physical and mental state at the time, are relevant to the objective assessment of reliability required under section 65(2)(c) (at [22]-[26], [36]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 59, 65, 66A, 67

Cases
- R v Hannes [2000] NSWCCA 503
- R v Walker [2017] NSWSC 997
- Sio v R (2016) 259 CLR 47; [2016] HCA 32