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Supreme Court 24 April 2019

R v Mackie (No 3)

[2019] NSWSC 456

Homicide
EVIDENCE HEARSAY MAKER UNAVAILABLE

Citation: R v Mackie (No 3) [2019] NSWSC 456
Court: Supreme Court of NSW
Date: 24 April 2019
Judge(s): Lonergan J

Background

This decision arose on day seven of a murder trial. The accused stood charged in connection with the death of the deceased, whose identity is known to the court. A witness, Ms McDowell, had provided police with a statement in February 2018, approximately two and a half years after the death, describing an incident from July or August 2015 in which the deceased ran toward a group with a worried look on her face and made certain statements about the accused.

Two specific representations within that account were contested. The first was the deceased's statement that the accused was "going to smack my head in," and the second was a statement attributing a reason for the accused wanting to hurt her. The Crown sought to lead this evidence through Ms McDowell as a witness.

The accused's counsel objected that both statements were inadmissible hearsay under section 59 of the Evidence Act 1995 (NSW). The Crown argued that, because the maker of the representations (the deceased) was unavailable, the statements fell within exceptions to the hearsay rule under section 65(2)(b) and (c) of the Act.

Legal Issues

  • Whether the deceased's representations fell within the hearsay exception in section 65(2)(b) of the Evidence Act, on the basis that they were made shortly after the asserted fact in circumstances making fabrication unlikely.
  • Whether the representations fell within the exception in section 65(2)(c), on the basis that circumstances made it highly probable the representations were reliable.
  • Whether, even if an exception applied, the evidence should be excluded under section 137 (probative value outweighed by danger of unfair prejudice) or section 135(b) (general exclusionary discretion) of the Act.

Decision

Issue 1: Section 65(2)(b) and (c) exceptions

Lonergan J found that the Crown had not established either exception to the hearsay rule (at [18]). The threshold difficulty was that the representations carried no indication of their origin. The court was unable to identify the circumstances surrounding them at a sufficient level of certainty to assess whether fabrication was unlikely or reliability was highly probable (at [19]).

The representations could have reflected a fear or impression formed by the deceased herself, second-hand information from an unspecified person, a mistake, or a bid for attention (at [20]). If the statements amounted to second-hand hearsay, they would also offend section 62, which restricts the Division 2 exceptions to first-hand hearsay (at [20]). The reference within the statement to events involving lingerie that occurred "a long time ago" further obscured any temporal connection between the representations and any identifiable asserted fact (at [21]).

Issue 2: Exclusion under section 137

The court found that, even if the section 65 exceptions had been satisfied, it would have excluded the representations under section 137 because their probative value was outweighed by the danger of unfair prejudice to the accused (at [22]). The representations attributed malice, violent intent, and a stated reason for that intent to the accused, without revealing any basis or origin for those assertions. There was a real risk the jury would misuse the evidence despite proper directions (at [23]).

Issue 3: Section 135(b)

Having concluded that section 137 required exclusion and that the representations were inadmissible hearsay in any event, the court did not need to separately resolve the section 135(b) discretion (at [24]).

Orders Made

  • The two representations of the deceased in issue are inadmissible.

Key Takeaways

  • Under sections 65(2)(b) and (c) of the Evidence Act 1995 (NSW), a court cannot assess whether a deceased person's representation is free from fabrication, or is highly probably reliable, where the origin of the representation is entirely unknown (at [19]).

  • Representations that may reflect second-hand information from an unspecified third party are not merely uncertain in reliability; they may also fall outside the Division 2 exceptions altogether because section 62 restricts those exceptions to first-hand hearsay (at [20]).

  • A lack of temporal clarity between an asserted fact and the making of a representation undermines the "shortly after" requirement in section 65(2)(b), particularly where the representation alludes to events from an unspecified earlier time (at [21]).

  • Where representations attribute violent intent to an accused without disclosing any basis for that attribution, section 137 may require their exclusion because of the real risk of jury misuse that directions alone cannot adequately address (at [22]-[23]).

  • The Supreme Court confirmed that the two-stage analysis (hearsay exception, then discretionary exclusion) operates independently: a failure at the hearsay exception stage is sufficient to render evidence inadmissible, but the court may also address the discretionary stage in the alternative (at [24]-[25]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 59, 65, 135, 137

Cases
- Not stated