Citation: [2018] NSWSC 1295
Court: Supreme Court of New South Wales
Date: 17 August 2018
Judge(s): Garling J
Background
This ruling arose during a criminal trial in the Supreme Court. The proceedings concerned an explosion at a Kingdom Hall, in which a person named Graham Wykes died. The accused challenged the adequacy of the police investigation that followed the explosion.
The Crown sought to tender a five-page Running Sheet prepared on 1 August 1985 by the witness then giving evidence, Mr Jesse Sheather, a member of the Ballistics Unit. The document recorded the investigative steps taken in the approximately ten days following the explosion, including the involvement of external scientists and the post-mortem examination of the deceased.
The accused objected to the Running Sheet's admission, arguing it contained hearsay, including opinions expressed by third parties.
Legal Issues
- Whether the Running Sheet was admissible under section 60 of the Evidence Act 1995, as evidence relevant for a non-hearsay purpose
- Whether the hearsay character of parts of the document precluded its admission
- Whether any limitation on the use of specific portions of the document was warranted under section 136 of the Evidence Act 1995
Decision
Issue 1: Admissibility for a non-hearsay purpose
Garling J held that the Running Sheet was relevant for a non-hearsay purpose: demonstrating the nature and extent of the investigation conducted by the Ballistics Unit and the results received during that period (at [4]-[5]). The adequacy of the Kingdom Hall investigation was directly in issue in the proceedings, and the document shed light on the methodology employed, the experts engaged, and the roles those experts played (at [6]-[7]).
Issue 2: Hearsay and admissibility
Because the document was demonstrated to be relevant for a non-hearsay purpose, Garling J found that its hearsay character did not prevent admission. The Crown's tender under section 60 of the Evidence Act 1995 was accepted, and the Running Sheet was admitted (at [8]-[9]).
Issue 3: Limiting use of specific contents
Although the accused had not expressly invoked section 136 of the Evidence Act 1995, Garling J considered it appropriate, given the tenor of the objections raised, to impose a use limitation on two paragraphs on page 3 of the document. Those paragraphs contained statements attributed to Mr Robert Barnes and Mr J Gothard, and the court directed that the contents of those paragraphs were not to be taken as evidence of the truth of those statements (at [10]).
Orders Made
- The Running Sheet dated 1 August 1985 is admitted and marked Exhibit 79.
- Pursuant to section 136 of the Evidence Act 1995, use of the material in the second and third paragraphs on page 3 is limited, so that the statements attributed to Mr Robert Barnes and Mr J Gothard are not to be taken as evidence of the truth of their contents.
Key Takeaways
- Under section 60 of the Evidence Act 1995, evidence that is relevant for a non-hearsay purpose may be admitted even where the document also contains hearsay material, provided the non-hearsay purpose is genuine and relevant to the issues in the proceedings (at [4]-[8]).
- The Supreme Court confirmed that a police running sheet documenting the steps, methodology, and expert engagement of an investigation can be relevant and admissible to address a challenge to the adequacy of that investigation (at [6]-[7]).
- Section 136 of the Evidence Act 1995 may be applied by the court on its own initiative where the tenor of a party's submissions, even without explicit invocation of that provision, signals a concern about the risk of a document being misused as evidence of truth (at [10]).
- Where a document contains statements attributed to third parties, a court may limit use of those specific portions without excluding the document as a whole, preserving its admissibility for the permitted non-hearsay purpose.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Not Applicable