Citation: R v Green (No 6) [2021] NSWSC 1306
Court: Supreme Court of New South Wales
Date: 7 July 2021
Judge(s): Campbell J
Background
This decision arose during a murder trial in which the Crown alleged that the accused, Mr Green, was present near the residence of the deceased, Ms Luckwell, at or about the time she was killed. The Crown sought to adduce evidence of a representation made by a witness, Mr Allan, to two other people, Ms Cheetham and Mr Renshaw, in which Mr Allan described having seen Mr Green in the vicinity.
The admissibility of that representation was in dispute. Mr Allan had already given evidence in the trial, but the topic of his representation to Ms Cheetham and Mr Renshaw had not been raised with him by counsel during his testimony. The Crown sought to lead evidence of the representation through Ms Cheetham and Mr Renshaw directly.
The court was required to rule on whether the representation was admissible, relying on two separate provisions of the Evidence Act 1995 (NSW): s 66, which applies to hearsay statements made when the events were fresh in the memory of the person who made them, and s 108, which relates to the rehabilitation of a witness whose credibility has been attacked.
Legal Issues
- Whether a prior representation by a witness is admissible under s 66 of the Evidence Act 1995 (NSW) where the witness has given evidence in the proceedings but was not asked about the representation when he testified.
- Whether, if s 66 applied, the representation qualified as one made while the relevant event was fresh in the maker's memory.
- Whether cross-examination of Mr Allan had sufficiently raised the suggestion that his evidence was a fabrication or reconstruction so as to satisfy the conditions for admissibility under s 108(3).
Decision
Issue 1: Admissibility under s 66
Campbell J admitted the representation under s 66 (at [1]). The court found the representation was relevant to a fact in issue, namely whether Mr Green was near the deceased's residence at the time of the alleged murder (at [1]).
The court rejected the proposition that s 66 requires the person who made the representation to have personally given evidence of it when called to testify. It is sufficient that the person has been, or will be, called to give evidence in the proceedings (at [3]). This conclusion was supported by the decision of Hamill J in R v Brooks (No 3) and two Victorian Court of Appeal decisions concerning that state's equivalent of the Uniform Evidence Law (at [3]). Once admitted under s 66, the operation of s 60 means the evidence is admitted for all purposes and stands as proof of the truth of the fact asserted (at [4]). The court noted, however, that the differences between what Ms Cheetham and Mr Renshaw were expected to say and what Mr Allan himself said would be relevant to the ultimate evaluation of the facts, with s 165 requiring hearsay evidence to be assessed with appropriate caution (at [2]).
Issue 2: Freshness in memory
Campbell J was satisfied that the representation, made within a couple of days of the event it described, was made while the event was fresh in Mr Allan's mind, applying the extended definition of that concept in s 66(2A) (at [5]).
Issue 3: Admissibility under s 108(3)
The court was not satisfied that the conditions for admissibility under s 108(3) were met (at [6]-[7]). Cross-examination of Mr Allan did not expressly or by implication suggest that his evidence was a fabrication or reconstruction. While counsel asked whether Mr Allan had been shown a photograph of Mr Green or CCTV footage by police, and whether he knew that Mr Green had been charged, Mr Allan denied all of this and was not seriously challenged on those denials. The cross-examination was more in the nature of an exploration of the circumstances in which Mr Allan's statement was made, rather than a direct challenge to the authenticity of his account (at [6]-[7]). Leave under s 108 would not have been granted had it been necessary (at [7]).
Orders Made
- The impugned representation is admitted pursuant to s 66 of the Evidence Act 1995 (NSW).
Key Takeaways
- Under s 66 of the Evidence Act 1995 (NSW), it is not a condition of admissibility that the person who made the prior representation personally gives evidence of that representation when called to testify; it is sufficient that the person has been, or will be, called to give evidence in the proceedings (at [3]).
- Once a prior representation is admitted under s 66, the operation of s 60 means the evidence is admissible for all purposes, including as proof of the truth of the fact asserted in the representation (at [4]).
- A representation made within a couple of days of the relevant event may satisfy the "fresh in memory" requirement under s 66(2A), having regard to the extended definition of that concept (at [5]).
- For s 108(3) to apply, cross-examination must expressly or by implication suggest that the witness's evidence was fabricated or reconstructed. Questions exploring the circumstances in which a statement was made do not necessarily meet that threshold, even where they touch on police contact or the showing of photographs (at [6]-[7]).
- Hearsay evidence admitted under s 66 remains subject to the caution required by s 165 when the court comes to evaluate the facts, particularly where there are material differences between what the hearsay witnesses and the original maker of the representation are expected to say (at [2]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 60, 66, 108, 165
Cases
- Papakosmas v The Queen (1999) 164 ALJR 548; HCA 37
- R v Brooks (No 3) [2017] NSWSC 261