AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 21 November 2018

R v Yavuz (No. 4)

[2018] NSWSC 1767

Homicide
EVIDENCE HEARSAY EXCEPTIONS FIRST HAND HEARSAY CRIMINAL TRIAL MURDER

Citation: R v Yavuz (No. 4) [2018] NSWSC 1767
Court: Supreme Court of New South Wales
Date: 21 November 2018
Judge: Davies J

Background

This decision arose during the retrial of a murder matter. A key prosecution witness, the person who had made a triple-zero call immediately after a stabbing, was called to give evidence. The Crown sought to tender the recording and transcript of that call during the witness's evidence in chief.

Defence counsel objected to the tender, arguing the call was a prior consistent statement and therefore inadmissible under the scheme of the Evidence Act 1995 (NSW). The Crown relied primarily on s 66A of the Act, and alternatively on s 66, to establish admissibility.

Davies J ruled the triple-zero call admissible and published these reasons explaining that ruling.

  • Whether the triple-zero call constituted a prior consistent statement and was excluded on that basis
  • Whether s 108(3)(b) of the Evidence Act impliedly prohibits the admission of prior consistent statements except in defined circumstances
  • Whether the hearsay exception in s 66 (first-hand hearsay in criminal proceedings where the maker is available) rendered the call admissible
  • Whether it made any difference that the witness had already given oral evidence of the underlying events before the call was tendered

Decision

Davies J held that the triple-zero call was clearly relevant under s 55, as it could rationally affect the assessment of facts in issue, namely what the witness observed and heard at the time of the stabbing. The call constituted hearsay under s 59(1), being a previous representation tendered to prove the existence of those facts. However, the exception in s 66(2) applied: the maker of the representation was called to give evidence, and when the call was made the events were fresh in his memory.

The defence argument based on s 108(3)(b) was rejected. Section 108 concerns the credibility rule, not the hearsay rule. At the point the Crown tendered the call, the witness had not yet been cross-examined and his credit was not in issue. Drawing on the High Court's reasoning in Adam v The Queen, Davies J emphasised that s 108(3) does not implicitly render prior consistent statements inadmissible in all other circumstances. The relevant question is whether evidence is relevant only to credibility. Here, the call went to the truth of the asserted facts, not merely to credit.

Davies J also rejected the submission that the order of evidence mattered. Defence counsel had conceded the call might have been admissible if tendered before the witness gave oral evidence, but argued it was inadmissible once he had already testified. The Judge found no basis in ss 55 or 66 for that distinction, noting that tendering the call before examination in chief would in any event be prima facie prohibited by s 66(4). The conditions in s 66(2) were met, and nothing precluded admission.

Davies J noted in closing that following the ruling, the witness was cross-examined robustly and his credit was squarely put in issue. In those circumstances, the Crown would also have had a separate basis to tender the call in re-examination under s 108(3)(b).

Orders Made

No orders were made in this decision.

Key Takeaways

  • Section 66 of the Evidence Act 1995 (NSW) provides a freestanding hearsay exception for first-hand representations made while events were fresh in the maker's memory; it operates independently of the credibility rule in s 102 and the prior consistent statement provisions in s 108.
  • Section 108(3) does not impliedly prohibit prior consistent statements in all circumstances outside its terms. As confirmed by the High Court in Adam v The Queen, the credibility rule only excludes evidence that is relevant solely to credibility, and evidence admitted under a hearsay exception such as s 66 goes to the truth of the facts asserted.
  • A triple-zero call made immediately after a violent incident can satisfy the "fresh in the memory" requirement in s 66(2), making it admissible as first-hand hearsay in a criminal trial where the caller is available to give evidence.
  • The sequence in which the representation and the witness's oral evidence are adduced does not, of itself, affect the operation of s 66. Admissibility does not turn on whether the call is tendered before or after the witness gives evidence of the underlying facts.
  • Where a witness is subsequently cross-examined and credit is put in issue, s 108(3)(b) may provide an additional, independent basis to tender a prior consistent statement in re-examination, as Davies J observed was open on the facts here.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 59, 66, 66A, 102, 108, 108A

Cases
- Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Odisho v R [2018] NSWCCA 19
- R v Castaneda (No 2) [2015] NSWSC 979
- R v Yavuz (No. 1) [2017] NSWSC 1645