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Supreme Court 1 October 2020

R v Ryan

[2020] NSWSC 1394

Homicide
CRIMINAL LAW MURDER EVIDENCE HEARSAY EVIDENCE WITNESS UNAVAILABLE EVIDENCE INADMISSIBLE

Citation: R v Ryan [2020] NSWSC 1394
Court: Supreme Court of New South Wales
Date: 1 October 2020
Judge(s): Button J

Background

The accused stood trial for murder before Button J, sitting as judge alone. The deceased victim was, of course, unavailable to give evidence. The Crown sought to adduce statements the deceased had allegedly made to her sister, shortly after certain events occurred or a state of affairs developed in her relationship with the accused.

Defence counsel objected to portions of two voir dire exhibits (exhibits B and C). A voir dire is a preliminary hearing conducted to determine whether particular evidence is admissible before the tribunal of fact considers it. The disputed material consisted of things the deceased was said to have told her sister about her intimate relationship with the accused.

  • Whether the Crown had established the preconditions under s 65(2)(b) and s 65(2)(c) of the Evidence Act 1995 (NSW) to admit hearsay statements made by an unavailable witness (the deceased)
  • Specifically, whether the circumstances surrounding the deceased's statements made it either: unlikely the representations were fabrications (s 65(2)(b)); or highly probable they were reliable (s 65(2)(c))

Decision

Button J accepted, for the sake of argument only, that the temporal requirement under s 65(2)(b) was satisfied: the deceased's statements could be characterised as having been made "when or shortly after the asserted fact occurred." That precondition was therefore set aside without further analysis.

The Crown relied on two circumstances to satisfy both paragraphs: the close relationship between the two sisters, and the inherently private nature of the conversations they shared. Button J acknowledged the force of those submissions. However, his Honour held that the applicable standard under s 65(2)(c) is higher than that under s 65(2)(b), and that positive satisfaction was required in both cases.

Drawing on the High Court's guidance in Sio v The Queen, Button J emphasised that exceptions to the hearsay rule must be approached with rigour, not in a "nebulous or impressionistic" way. His Honour observed that people speaking privately in close relationships about intimate matters can, as a matter of human experience, be reliable or unreliable, truthful or not. The circumstances relied upon by the Crown produced neither satisfaction nor dissatisfaction about reliability or fabrication, leaving the court in a neutral state.

Because that neutral state fell short of the positive satisfaction required, the Crown had not overcome the statutory hurdles in either paragraph. The hearsay evidence was accordingly ruled inadmissible.

Orders Made

• The hearsay evidence will not be admitted.

Key Takeaways

  • Under s 65(2) of the Evidence Act 1995 (NSW), a party seeking to admit hearsay evidence from an unavailable witness must achieve positive satisfaction that the statutory preconditions are met; a neutral state of mind is insufficient.
  • The High Court's decision in Sio v The Queen (2016) 259 CLR 47 requires trial judges to apply the exceptions to the hearsay rule with strictness, assessing each representation individually rather than through a broad, impressionistic analysis.
  • Where a deceased person's out-of-court statements concern an intimate relationship, the mere fact of a close relationship between the deceased and the recipient of those statements, and the private nature of the conversation, does not automatically satisfy the requirements of s 65(2)(b) or s 65(2)(c).
  • The standard under s 65(2)(c) (highly probable that the representation is reliable) is higher than the standard under s 65(2)(b) (unlikely that the representation is a fabrication).
  • Button J confirmed that, where all representations under objection share the same character and the same circumstances are relied upon for admission, it is permissible for the court to address admissibility generically at a first stage, subject to the Crown subsequently applying the ruling in a granular way.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 65(2)(b) and s 65(2)(c)

Cases
- Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47