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Supreme Court 6 September 2021

R v Wiggins (No 3)

[2021] NSWSC 1128

Homicide
BILLED WHETHER SECOND HAND HEARSAY OR IMPLIED ADMISSIONS HELD, STATEMENTS ARE FIRST HAND HEARSAY AND NOT ADMISSIONS WHETHER FRESH IN THE WITNESS’ MEMORY

Citation: R v Wiggins (No 3) [2021] NSWSC 1128
Court: Supreme Court of New South Wales
Date: 6 September 2021
Judge: N Adams J

Background

The accused faced a retrial for the murder of a man shot in the front yard of his parents' home in the Illawarra district on 14 April 2012, as well as a charge of intentionally inflicting grievous bodily harm on the deceased's father. The Crown case was circumstantial, centring on the accused's alleged use of a specific trail bike obtained through an associate, Mr Ferguson, whose home was later searched and found to contain balaclavas and from whose garage a helmet bearing the accused's DNA had allegedly come. The case had a lengthy procedural history, including two earlier trials and a successful appeal resulting in the new trial order.

In preparation for the retrial, the Crown sought to call a new witness, referred to in the judgment as Mr X, who had not appeared in any previous trial. Mr X was a close associate of Mr Ferguson, who had himself been charged as an accessory before the fact but whose charges were ultimately no-billed.

The accused's senior counsel objected to the proposed evidence of Mr X before trial. The central issue was whether Mr X could give evidence of statements Mr Ferguson allegedly made to him about organising the motorbike, the balaclava found in a police raid, and sourcing the helmet used in the murder.

  • Whether the proposed evidence of Mr X constituted inadmissible second-hand hearsay under s 62(1) of the Evidence Act 1995 (NSW), or was instead first-hand hearsay admissible under the s 66 exception (maker available to give evidence)
  • Whether the statements attributed to Mr Ferguson were admissible as admissions made with authority in furtherance of a common purpose under s 87 of the Evidence Act, or were excluded as third-party admissions under s 83
  • Whether the statements qualified as admissions at all, or were better characterised as implied admissions
  • Whether the statements were sufficiently "fresh" in Mr X's memory under s 66(2), given they were made up to seven years after the events described
  • Whether the evidence was alternatively admissible as credibility evidence under ss 103 and 106 of the Evidence Act
  • Whether the evidence should be excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
  • Whether a s 165 warning about the hearsay nature of the evidence would be appropriate if it were admitted

Decision

First-hand hearsay, not second-hand hearsay. Adams J held that the statements Mr Ferguson made to Mr X were first-hand hearsay rather than second-hand hearsay. Mr X personally heard the statements from Mr Ferguson directly. The statements were therefore potentially admissible under the s 66 exception, provided other requirements were satisfied, and the concern raised by the High Court in Lee v The Queen about second-hand hearsay did not apply.

Not admissions, and not made in furtherance of common purpose. The accused argued the statements were implied admissions made with the authority of the accused in furtherance of a common purpose, and therefore admissible under s 87. Adams J rejected both limbs of this argument. The statements were not admissions at all, because they were Mr Ferguson's own narrative accounts of past events rather than representations intended to assert facts adverse to the accused. Further, even if they could be characterised as admissions, any common purpose between Mr Ferguson and the accused necessarily ended upon the death of the deceased. Statements made well after the event, in the nature of narrative recollections, were not made in furtherance of any ongoing common purpose.

Fresh in the memory despite the passage of time. The accused contended the statements could not satisfy the freshness requirement in s 66(2) because they were made years after the relevant events. Adams J held that the statements were fresh in Mr X's memory, having regard to the nature of the events themselves. The extraordinary and memorable character of the events described supported a finding of freshness despite the gap of up to seven years between the events and when the statements were made to Mr X.

Probative value not outweighed by unfair prejudice. Adams J was not satisfied that the evidence should be excluded under s 137. Taking the evidence at its highest, the probative value was reasonably high given its potential to link the accused, Mr Ferguson, and the bike. The prejudice identified by the accused, including forensic difficulties for defence counsel, did not amount to "unfair prejudice" within the meaning of s 137. The possibility that a Basha hearing could be conducted to clarify what Mr Ferguson would say further reduced the concern. A warning under s 165, appropriate to the hearsay nature of the evidence, was flagged as likely to be required at trial.

Orders Made

• The evidence of Mr X is not excluded under s 137 of the Evidence Act
• A warning pursuant to s 165 of the Evidence Act should be given about the evidence of Mr X

Key Takeaways

  • Under s 66 of the Evidence Act 1995 (NSW), a witness who personally hears a statement from another person gives first-hand hearsay evidence, even where that statement concerns the speaker's own past conduct. The concerns identified by the High Court in Lee v The Queen about the dangers of second-hand hearsay do not arise in such circumstances.
  • A common purpose for the purposes of s 87 of the Evidence Act does not extend beyond the completion of the relevant criminal act. Narrative statements made after the event, recounting past involvement, are not made "in furtherance" of any common purpose and therefore cannot qualify as admissions with the authority of a co-participant.
  • The "freshness" requirement in s 66(2) is assessed by reference to the nature and memorability of the events described, not simply by measuring the elapsed time. Extraordinary events may remain fresh in a witness's memory over many years.
  • Forensic difficulty for defence counsel, such as being placed in the position of challenging the evidence of a witness favourable to the Crown, does not by itself constitute "unfair prejudice" within the meaning of s 137 of the Evidence Act.
  • Where hearsay evidence is admitted under s 66, a direction to the jury under s 165 about the potential unreliability of hearsay evidence remains a relevant consideration, even where the witness is not a prison informer within the technical definition in s 165(1)(e).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 38, 59, 60, 62, 65, 66, 81, 83, 87, 101A, 102, 103, 106, 136, 137, 165

Cases
- Higgins v R [2020] NSWCCA 149
- Landini v State of NSW [2007] NSWSC 259
- Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Basha (1989) 39 A Crim R 337
- R v Dolding [2018] NSWCCA 127
- R v Gregory-Roberts [2016] NSWCCA 92
- R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22
- Wiggins v R [2020] NSWCCA 256