Citation: R v Green (No 8) [2021] NSWSC 1309
Court: Supreme Court of New South Wales
Date: 28 September 2021
Judge: Campbell J
Background
This is an evidentiary ruling arising in a murder trial before the Supreme Court. The accused, referred to by his role as the defendant, faced allegations relating to the death of a woman in South Tamworth in the early hours of 28 March 2018.
A witness, Mr Morgan, had given evidence that he observed a person he identified as the defendant crossing a street near the deceased's residence around the relevant time. Approximately three months later, on 20 June 2018, Mr Morgan was interviewed by police and drew two sketches illustrating his route and the location of his sighting.
The Crown sought to tender those sketches during the evidence of the interviewing detective, who was a different witness from Mr Morgan. The defence opposed admission, raising questions about whether the asserted facts were sufficiently fresh in Mr Morgan's memory at the time the representation was made, and whether the statutory preconditions for the exception were satisfied.
Legal Issues
- Whether the two sketches drawn by Mr Morgan constituted an admissible previous representation under s 66(2) of the Evidence Act 1995 (NSW)
- Whether the occurrence of the asserted fact was "fresh in the memory" of Mr Morgan at the time he made the representation, given the three-month gap and his history of substance abuse
- Whether the additional requirement in s 66(3), limiting a prosecutor's use of the exception to representations concerning the identity of a person, place or thing, was satisfied
Decision
Issue 1: Admissibility through a different witness
Campbell J confirmed that s 66 permits a previous representation to be admitted through a different witness while the original maker is separately available. A contradiction between the two witnesses may go to weight but does not affect admissibility (at [8]).
Issue 2: Freshness of memory
The court was satisfied that the sighting was fresh in Mr Morgan's memory when he made the representation on 20 June 2018, despite the three-month interval (at [9]). Campbell J reasoned that the killing of the deceased had achieved notoriety in South Tamworth and the broader community, meaning the surrounding events would have remained vivid for someone connected to the sighting. The court also noted that Mr Morgan was not elderly and had no general cognitive frailty that would impair recall. The suggestion that his history of substance abuse negated freshness was rejected (at [7], [9]).
Issue 3: The s 66(3) restriction on prosecutorial use
Section 66(3) limits the prosecution to relying on s 66(2) only where the representation concerns the identity of a person, place or thing. Campbell J found this requirement was satisfied because the sketches concerned the identity of a place, namely the location of the sighting in context and its proximity to the deceased's residence (at [10]).
Orders Made
- The two sketches drawn by Mr Morgan, prepared on 20 June 2018, are admitted as Exhibit 14.
Key Takeaways
- Under s 66(2) of the Evidence Act 1995 (NSW), a previous representation may be admitted through a witness other than its maker, provided the maker is available to give evidence; any tension between the two witnesses' accounts is a matter going to weight, not admissibility (at [8]).
- A three-month gap between the underlying event and the making of a representation does not automatically defeat the "fresh in memory" requirement where the surrounding circumstances, such as community-wide notoriety of the events, would have kept those matters vivid for the witness (at [9]).
- A witness's history of substance abuse does not, without more, establish that an asserted fact was not fresh in memory at the time of the representation (at [7], [9]).
- Section 66(3) imposes a distinct restriction on prosecutorial use of the first-hand hearsay exception in criminal proceedings: the Crown may only rely on s 66(2) where the representation concerns the identity of a person, place or thing (at [10]).
- The identity of a "place" within s 66(3) was held to extend to the location of a sighting described in its broader geographical context, including its proximity to a relevant address (at [10]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) s 66
Cases
- Graham v The Queen (1998) 195 CLR 606