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Supreme Court 22 October 2019

R v Dillon (No 3)

[2019] NSWSC 1537

Homicide
CRIMINAL PROCEDURE ADMISSIBILITY OF EVIDENCE EXCEPTIONS TO THE HEARSAY RULE

Citation: R v Dillon (No 3) [2019] NSWSC 1537
Court: Supreme Court of New South Wales
Date: 22 October 2019
Judge: Campbell J

Background

The accused stood trial for the murder of a man fatally stabbed at the accused's home in Panania on 18 July 2016. The Crown alleged the accused intentionally stabbed the deceased four times in the back. The accused did not deny the stabbing but raised self-defence, defence of another, and extreme provocation as issues at trial.

A key witness, Mr Obeid, had been present at events on the night of the killing and had made two police statements, which contained conflicting accounts. By the time of the trial, Mr Obeid was mentally unable to give evidence and that inability could not practically be overcome.

The Crown sought to tender a transcript of Mr Obeid's evidence from committal proceedings held on 14 December 2017, relying on two specific representations from that transcript. Campbell J ruled on the admissibility of that transcript in this interlocutory decision.

  • Whether Mr Obeid was "unavailable" to give evidence within the meaning of the Evidence Act 1995 (NSW)
  • Whether the committal transcript was admissible as prior representations of an unavailable witness under s 65(3) of the Evidence Act
  • Whether the committal transcript should in any event be excluded under s 135 on the basis that its probative value was substantially outweighed by the danger of the evidence being misleading or confusing
  • Whether a warning under s 165 could adequately address any risk of the evidence misleading the jury

Decision

Unavailability of Mr Obeid

Campbell J was satisfied that Mr Obeid was unavailable within the meaning of the Act, being mentally unable to give evidence and with no reasonably practicable means of overcoming that inability. This finding rested on the judge's own observations of Mr Obeid's evidence, both before the jury and on the voir dire (the preliminary hearing used to determine admissibility), as well as the evidence of a psychiatrist, Dr Selim, which the judge described as impressive.

Section 65(3): Admissibility of the Committal Transcript

Campbell J held the transcript was not admissible under s 65(3). Relying on the High Court's decision in Lee v The Queen (1998) 195 CLR 594, his Honour found that an out-of-court representation by one person cannot be used to prove an out-of-court representation made by another person. The Crown sought to use Mr Obeid's committal evidence to establish something said by the accused. That, the judge held, fell outside the scope of s 65(3). His Honour also noted that, had Mr Obeid been available, the relevant statement attributed to the accused would have been admissible under s 66A as a non-confessional prior representation, but the basis on which evidence would have been admissible from a live witness did not resolve the distinct question of whether the proposed tender of the transcript was itself admissible.

Discretionary Exclusion Under Section 135

Even if the admissibility findings had been wrong, Campbell J said he would have exercised the discretion under s 135 to exclude the evidence. The judge accepted that the representations had some probative value, corroborating other Crown witnesses, but concluded that value was substantially outweighed by the danger of the evidence being misleading or confusing. Dr Selim's evidence indicated Mr Obeid's account was inherently unreliable, not merely possibly unreliable, due to mental ill health that was present both in 2019 and at the time he made the conflicting statements in 2016. Admitting the committal transcript without adequate context would, in the judge's view, risk significant forensic disadvantage to the accused if the jury treated the second police statement as reliable evidence against him.

The Section 165 Warning

Campbell J was not satisfied that a judicial warning under s 165 could adequately overcome the risk. The difficulty was not simply one of unreliability that a standard warning could address. Dr Selim would need to be recalled before the jury to give evidence about Mr Obeid's mental condition, which would itself place before the jury evidence that they would then be warned in the strongest terms might be unreliable. That procedure would not cure the problem; rather, it would compound the risk of the evidence misleading or confusing the jury.

Orders Made

• The representations the Crown sought to establish from the previous evidence of Mr Obeid were ruled inadmissible, or alternatively, excluded in the exercise of the court's discretion under the Evidence Act.

Key Takeaways

  • Under s 65(3) of the Evidence Act 1995 (NSW), an out-of-court representation by one person cannot be admitted through the prior recorded evidence of a different unavailable witness to establish what the first person said. The High Court's reasoning in Lee v The Queen (1998) 195 CLR 594 remains the controlling authority on this point.

  • Unavailability by reason of mental illness can satisfy the threshold for s 65(3) purposes, provided the court is satisfied the inability is genuine and cannot reasonably be overcome. Campbell J based this finding on both direct observation and expert psychiatric evidence.

  • Where a prior witness statement is inherently unreliable due to the witness's mental health at the time it was made, a s 165 warning may be an inadequate remedy. The Supreme Court found that the underlying unreliability rendered the evidence potentially misleading in a way that a direction to the jury could not sufficiently cure.

  • The basis on which a live witness's evidence would have been admissible (here, under s 66A) does not automatically determine whether a transcript of that witness's prior recorded evidence is admissible under s 65(3). These are separate questions.

  • Section 135 exclusion can apply even where evidence is not unfairly prejudicial in the sense engaged by s 137, if the probative value is substantially outweighed by the risk that the evidence will mislead or confuse the jury.

Legislation and Cases Referenced

Legislation

  • Evidence Act 1995 (NSW), ss 32, 55, 65(3), 65A, 135, 136, 137, 165

Cases

  • Lee v The Queen (1998) 195 CLR 594 (High Court of Australia)
  • Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
  • Vickers v R [2006] NSWCCA 60
  • Alzawy v Coptic Orthodox Church [2016] NSWSC 1122