Citation: [2018] NSWSC 1285
Court: Supreme Court of New South Wales
Date: 15 August 2018
Judge(s): Garling J
Background
This decision arose during a lengthy criminal trial concerning a series of events from 1985, including an alleged bombing of a Kingdom Hall on 21 July 1985 (Event 7) and a separate incident involving a detonator found in a vehicle on 10 February 1985 (Event 6). The Crown tendered a running sheet, a contemporaneous police document, written by former Detective Sergeant Sheather in August 1985.
The running sheet recorded three things: that the detonator from Event 6 had been detonated; that the detonator's remains were sent to the Material Research Laboratories (MRL) in Melbourne on 12 August 1985; and that the following day, an MRL scientist named Mr Barnes communicated his expert opinion about the detonator's type and its connection to the Event 7 bombing.
The accused objected to the admission of the second paragraph of the running sheet, which captured Mr Barnes' communicated opinion, on the basis that it was inadmissible hearsay. The Crown sought admission under s 66 or, alternatively, s 60 of the Evidence Act 1995.
Legal Issues
- Whether the running sheet's record of Mr Barnes' expert opinion constituted inadmissible hearsay
- Whether the s 66 exception to the hearsay rule applied, specifically whether the asserted fact was fresh in the memory of the person who made the representation at the time it was made
- Whether the court needed to consider s 60 of the Evidence Act 1995 as an alternative basis for admission
Decision
Issue 1: Relevance of the document
Garling J found the running sheet was relevant to counts involving at least Events 6 and 7. It was also relevant to rebut the accused's contention that the Event 7 investigation had been conducted incompetently (at [3]).
Issue 2: Application of s 66 of the Evidence Act 1995
Section 66 provides an exception to the hearsay rule where the maker of the representation is available to give evidence about the asserted fact. Here, Mr Barnes was the maker, and the Crown intended to call him as a witness (at [6]). The critical requirement under s 66 is that the asserted fact was fresh in the memory of the person who made the representation when they made it. Garling J was satisfied this requirement was met: Mr Barnes received and examined the detonator on 12 August 1985 and communicated his opinion the very next day, on 13 August 1985 (at [8]).
Garling J further found that the representation was also fresh in Mr Sheather's memory when he completed the running sheet shortly thereafter (at [9]). The accused advanced no further objections based on ss 135, 136, or 137 of the Evidence Act 1995 (at [10]). The submission that Mr Barnes himself should give the evidence did not affect admissibility; it went only to the weight of the hearsay evidence (at [11]).
Issue 3: Section 60 as alternative basis
Because the document was admissible under s 66, Garling J found it unnecessary to consider whether s 60 provided an additional basis for admission (at [12]).
Orders Made
- The running sheet is admitted into evidence pursuant to s 66 of the Evidence Act 1995 and marked as Exhibit 66.
Key Takeaways
- Under s 66 of the Evidence Act 1995, a previous representation by an unavailable or to-be-called witness is admissible as an exception to the hearsay rule, provided the asserted fact was fresh in the maker's memory at the time the representation was made (at [6], [8]).
- A gap of only one day between an expert's examination of materials and the communication of an opinion about those materials was sufficient to satisfy the "fresh in memory" requirement under s 66 (at [8]).
- The freshness of a representation in the memory of the person who recorded it, not only the person who made it, was also considered relevant to satisfying the s 66 threshold (at [9]).
- A submission that hearsay evidence is better given by the original maker does not affect its admissibility; it is a matter going to weight only (at [11]).
- Where a document is admitted under s 66, there is no need to separately consider s 60 as an alternative basis for admission (at [12]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Not Applicable