Citation: R v Green (No 5) [2021] NSWSC 1305
Court: Supreme Court of New South Wales
Date: 6 July 2021
Judge: Campbell J
Background
This decision arises from a special hearing under the Mental Health and Cognitive Forensic Provisions Act 2020 (NSW), conducted before a judge alone. The accused was alleged to have killed the deceased in the early hours of 28 March 2018. The Crown's case was circumstantial.
A neighbour, Mr Kim Enks, had made a statement to police on 29 March 2018, the day after the deceased's body was discovered. In that statement, Mr Enks described hearing his dogs bark and then hearing a scream coming from the direction of the deceased's residence. Mr Enks subsequently died, having suffered serious disabilities following a car accident in his later years.
The Crown tendered Mr Enks's statement as hearsay evidence under s 65 of the Evidence Act 1995 (NSW). The accused's counsel did not dispute that Mr Enks was unavailable or that the prima facie admissibility requirements of s 65(2) were satisfied. The objection was confined to a single sentence: the portion of the statement identifying the direction from which the scream came.
Legal Issues
- Whether the contested portion of Mr Enks's hearsay statement should be excluded under s 137 of the Evidence Act 1995 (NSW) on the ground that its unfair prejudice to the accused outweighed its probative value
- Whether the inability to cross-examine a deceased hearsay declarant on a matter going to an indispensable intermediate fact in the Crown's circumstantial case constituted "unfair prejudice" within the meaning of s 137
- Whether the judge-alone nature of the hearing affected the s 137 analysis
Decision
Issue 1: Whether the inability to test hearsay evidence on a vital issue constitutes unfair prejudice under s 137
The accused's counsel argued that the contested sentence was an essential link in the Crown's circumstantial case, in that proof of the scream's origin was an indispensable intermediate fact requiring proof beyond reasonable doubt. Because Mr Enks was dead, the defence could not cross-examine him on the circumstances in which he perceived and attributed the direction of the sound. Counsel submitted this inability to test the evidence constituted unfair prejudice within s 137.
Campbell J rejected this argument. The inability to test hearsay evidence in the same manner as viva voce (in-court) evidence is inherent in the admission of hearsay generally. Not every piece of hearsay evidence admitted under the Act rises to the level of being unfairly prejudicial in the sense s 137 requires (at [8]-[9]).
Issue 2: Whether the significance of the evidence to the Crown case elevates the prejudice
His Honour acknowledged that the probative value of the contested sentence, taken at its highest, may be significant to the Crown case. However, the fact that hearsay evidence bears on a matter of particular importance does not itself convert the ordinary limitations of hearsay into unfair prejudice under s 137 (at [10]).
His Honour also noted that it remained open to the defence to challenge Mr Enks's capacity to identify the direction of the sound, having regard to his physical position in the house and the inference that he may have been watching television when he woke, as was apparently his habit (at [10]).
Issue 3: Effect of the judge-alone hearing and the s 165 warning
Campbell J identified two further considerations that reduced the risk of prejudice. First, in a judge-alone trial, the risk that a jury might give hearsay evidence more weight than it reasonably bears is absent, because a judge must give reasons and is more readily subject to appellate review (at [11]). Second, his Honour applied the s 165 warning to himself, noting that hearsay evidence may be unreliable, that it is not readily testable, and that caution is required in deciding whether to accept it and what weight to give it. The availability of that warning further reduced any residual prejudice (at [12]).
On that basis, his Honour was not satisfied that s 137 was engaged, and admitted the whole of Mr Enks's statement.
Orders Made
- The whole of the statement of Mr Kim Enks is admissible.
Key Takeaways
- The inherent untestability of hearsay evidence does not, without more, constitute "unfair prejudice" for the purposes of s 137 of the Evidence Act 1995 (NSW); that limitation is built into the statutory scheme that permits hearsay in defined circumstances (at [8]-[9]).
- Under s 137, the court conducts an evaluative exercise rather than exercising a discretion; the fact that hearsay evidence goes to an important element of the Crown's case does not automatically tip the balance toward exclusion (at [10]).
- In a judge-alone criminal trial, the risk of opaque jury misuse of hearsay evidence is absent, and that absence is a relevant consideration when weighing unfair prejudice against probative value under s 137 (at [11]).
- A judge sitting alone in a criminal proceeding is required to apply the s 165 caution to themselves regarding hearsay reliability, and the availability of that self-direction reduces the prejudice that might otherwise attend the admission of hearsay (at [12]).
- Where the hearsay declarant's opportunity to accurately perceive the matter in question remains open to challenge through other evidence, that residual ability to test the weight of the representation is a relevant factor against exclusion (at [10]).
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Forensic Provisions Act 2020 (NSW)
- Evidence Act 1995 (NSW) ss 65, 137, 165
Cases
- Nil