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Supreme Court 6 September 2019

R v McCloskey; R v Hamalainen

[2019] NSWSC 1175

Homicide
EVIDENCE WHETHER SUCH REPRESENTATIONS RELEVANT HEARSAY PURPOSE

Citation: R v McCloskey; R v Hamalainen [2019] NSWSC 1175
Court: Supreme Court of New South Wales
Date: 6 September 2019
Judge(s): Wright J

Background

Two accused, referred to as RM and SH, faced trial together on a single indictment charging the murder of a man at Kings Point in New South Wales on 23 June 2013. The prosecution alleged a joint criminal enterprise in which SH organised the killing and RM carried it out, with assistance from a witness who was also involved in preparatory steps including acquiring and positioning a car.

Both accused pleaded not guilty. SH specifically denied any involvement in organising the murder and argued that any admissions made by RM were not admissible against him.

The proceedings concerned a series of pre-trial evidentiary rulings on multiple paragraphs of witness statements, each challenged on the grounds of relevance, the hearsay rule under the Evidence Act 1995 (NSW), and whether any exceptions to that rule applied.

Legal Issues

  • Whether evidence of SH's attitude and motive towards the deceased is relevant and admissible
  • Whether SH's out-of-court statement that RM "and his crew are coming down to fix Johnny" is admissible against RM under the joint criminal enterprise admission provisions (s 87(1)(c) of the Evidence Act)
  • Whether SH's later narrative statement that RM "went too far and shot Johnny" is admissible against RM, either as a non-hearsay admission or under the s 60 exception
  • Whether SH's instructions to the witness not to mention RM or the Subaru to police are admissible against RM
  • Whether SH's post-offence representations admitting his role are admissible against RM
  • Whether RM's post-offence representations are admissible against SH, particularly where made years after the offence and outside SH's presence

Decision

Issue 1: Motive evidence

Evidence of SH's hostility towards the deceased, including his belief that the deceased was encroaching on his drug trade and reasons for severing contact, is admissible against both accused. Wright J held that evidence tending to establish motive rationally affects the probability of elements of the murder charge and is therefore relevant under s 55 of the Evidence Act, applying HML v The Queen (at [11]-[14]). Any prejudice arising from references to uncharged criminal conduct could be addressed by jury directions (at [13]).

Issue 2: SH's statement that RM was "coming down to fix Johnny" (par 72)

This statement is admissible against RM as an admission under ss 81 and 87(1)(c) of the Evidence Act. Wright J was satisfied that, viewed in the context of surrounding evidence, it was reasonably open to find that SH made the statement as part of the arrangements implementing the joint criminal enterprise. It served to explain to the witness whom he was to meet and what he was required to do, and was therefore made in furtherance of the common purpose (at [30]-[31]).

Issue 3: SH's statement that RM "went too far and shot Johnny" (par 101 of first statement)

This statement is inadmissible against RM. The representation is a narrative of a past event made by SH outside RM's presence. Wright J held that if the statement is not used to prove the truth of what SH asserted, it is not relevant under s 55 because the mere fact of utterance provides no basis for inference. If it is used to prove the asserted facts, it is excluded by the hearsay rule in s 59, and the s 60 non-hearsay exception does not apply. The Crown did not rely on s 87(1)(c) for this paragraph, and no other admissions exception was available (at [53]-[58]).

Issue 4: SH's instructions to the witness not to mention RM or the Subaru (par 109)

This evidence is inadmissible against RM. The implied representation in the paragraph is that SH and RM were involved in the joint criminal enterprise. Leading this evidence against RM serves only to prove that asserted fact, meaning the s 60 non-hearsay exception cannot apply, and no other exception was relied upon (at [62]-[64]).

Issue 5: SH's later representations that he "got RM to do it" (par 22 of second statement)

These representations, made approximately eighteen months after the killing, are inadmissible against RM. Wright J treated them as falling into the same category as the paragraph 101 narrative statement, applying the same reasoning without repeating it (at [66]-[67]).

Issue 6: Observational evidence of instructions, actions and words (par 94)

This evidence is admissible against both accused under the s 60(1) non-hearsay exception. It consists of direct observational evidence of instructions given, actions taken, and words spoken, and the Crown relies on it not to prove the truth of any asserted fact but to allow inferences to be drawn about SH's participation and consciousness of guilt (at [38]-[40]).

Issue 7: RM's post-offence representations admissible against RM but not SH

RM's out-of-court representations made more than three and four years after the killing, outside SH's presence, are inadmissible against SH. These are narratives of past events in the same category as the paragraph 101 ruling, and neither the s 60 non-hearsay exception nor the admissions provisions operate in SH's favour on these paragraphs (at [75]-[76], [78]-[79], [81]-[82]).

Issue 8: Conversation between RM and the witness concerning SH (par 103)

This evidence is admissible against RM. It is relevant under s 55 and, to the extent it falls within s 59, it either constitutes an admission by RM under s 81 or is relied upon for a non-hearsay purpose admissible under s 60 (at [87]-[89]).

Orders Made

  • Paragraphs 39, 40 and 43 of the statement of witness RS 1678789 (24 August 2017) are admissible against both RM and SH
  • Paragraph 72 of the statement of witness RS 1678789 (24 August 2017) is admissible against RM
  • Paragraph 94 of the statement of witness RS 1678789 (24 August 2017) is admissible against both RM and SH
  • Paragraph 101 of the statement of witness RS 1678789 (24 August 2017) is inadmissible against RM
  • Paragraph 109 of the statement of witness RS 1678789 (24 August 2017) is inadmissible against RM
  • Paragraph 22 of the statement of witness RS 1633171 (27 April 2016) is inadmissible against RM
  • Paragraphs 25 and 30 of the statement of witness RS 1591297 (2 August 2017) are admissible against both RM and SH
  • Paragraphs 77, 78, 84 and 85 of the statement of witness RS 1591297 (2 August 2017), and any recordings of the conversations referred to, are inadmissible against SH
  • Paragraph 95 of the statement of witness RS 1591297 (2 August 2017), and any recordings of the conversation referred to, are inadmissible against SH
  • Paragraph 101 of the statement of witness RS 1591297 (2 August 2017) is inadmissible against SH
  • Paragraphs 102 and 104-106 of the statement of witness RS 1591297 (2 August 2017), and any recordings of the conversations referred to, are inadmissible against RM
  • Paragraph 103 of the statement of witness RS 1591297 (2 August 2017), and any recording of the conversation referred to, are admissible against RM

Key Takeaways

  • A co-accused's out-of-court statement is admissible against a joint accused as an admission under s 87(1)(c) of the Evidence Act where it is reasonably open to find the statement was made in furtherance of a common purpose. Contextual evidence of coordinated preparatory acts can satisfy that threshold, as it did here with SH's statement that RM was "coming down to fix Johnny" (at [30]-[31]).

  • The non-hearsay exception in s 60 of the Evidence Act does not rescue a co-accused's out-of-court narrative of past events when the only relevant purpose for admitting that evidence is to prove the facts asserted in it. Where the mere fact of utterance, divorced from its truth, cannot support any useful inference, the evidence is also not relevant under s 55 (at [53]-[57]).

  • Under ss 59 and 87(1)(c) of the Evidence Act, the critical distinction is between statements made in furtherance of an ongoing common purpose and later narrative accounts of completed events. Statements in the former category may qualify as co-accused admissions; statements in the latter do not (at [47]-[48]).

  • Evidence of a party's motive, even where it incidentally discloses uncharged criminal conduct, is relevant and admissible under s 55 of the Evidence Act. Any resulting prejudice is addressed by jury directions rather than exclusion (at [11]-[13]).

  • Direct observational evidence of instructions, actions and words is admissible under the s 60(1) non-hearsay exception where the Crown relies on it to draw inferences, rather than to prove the truth of any asserted fact (at [38]-[40]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 HML v The Queen (2008) 235 CLR 334; [2008] HCA R v Azari (No 7) [2018] NSWSC 1680 R v Baladjam [No 19] [2008] NSWSC 1441 R v Masters (1992) 26 NSWLR 450 R v Qaumi (No 14) [2016] NSWSC 274; 265 A Crim R 575 Tripodi v The Queen (1964) 104 CLR 1 at 7; [1961] HCA 22