Citation: R v Green (No 2) [2021] NSWSC 854
Court: Supreme Court of New South Wales
Date: 17 June 2021
Judge: Campbell J
Background
The accused stood trial for the murder of a woman identified in these proceedings as the alleged victim. Before trial, the Crown sought advance rulings under s 192A of the Evidence Act 1995 (NSW) on the admissibility of hearsay representations made by the deceased during her lifetime. The representations appeared in a statement taken by an officer of a social housing provider, who was the deceased's landlord.
The statement in question contained two parts. Part A recorded that the deceased was fearful of the accused turning up uninvited at her home. Part B recorded her account that when he did turn up, he would refuse to leave and become abusive. Because the deceased could not give evidence, both parts constituted hearsay requiring a statutory exception to be admitted.
The defence accepted Part A but contested Part B, arguing that the circumstances did not satisfy the threshold required for admissibility under s 65(2)(c) of the Evidence Act.
Legal Issues
- Whether Part A of the deceased's representations was admissible under s 66A of the Evidence Act as a contemporaneous statement about her feelings or state of mind
- Whether Part B of the representations was admissible under s 65(2)(c) of the Evidence Act as first-hand hearsay made by an unavailable person in circumstances that made it highly probable the representation was reliable
- Whether the deceased's potential motive to obtain better housing, and her failure to report the conduct to police, were circumstances undermining reliability under s 65(2)(c)
Decision
Issue 1: Part A (deceased's fear of the accused)
The defence did not contest the admissibility of Part A. Campbell J accepted it was properly admissible under s 66A as a contemporaneous representation about the deceased's feelings and state of mind (at [5]).
Issue 2: Part B (accused's conduct of refusing to leave and becoming abusive)
The admissibility of Part B turned on whether the objective circumstances made it "highly probable" the representation was reliable, the test under s 65(2)(c) (at [11]). Campbell J noted that "highly probable" imports a standard higher than the balance of probabilities (at [11]). Consistent with the approach in Clarke (a Pseudonym) v The Queen [2017] VSCA 115, the court was required to assess reliability without reference to other evidence that merely tends to establish the same fact (at [12]).
Issue 3: Competing factors on reliability
The defence pointed to two matters bearing against reliability: the deceased's possible motive to fabricate in order to obtain a housing transfer, and evidence from a third party that the deceased had previously made what he considered a false complaint against another person in a relationship (at [9], [14]). Campbell J acknowledged these as relevant but did not consider the potential housing benefit to be a weighty concern, noting that obtaining relief from genuine harassment could hardly be characterised as an unwarranted gain (at [16]). Importantly, the representation was made to an official acting in a formal capacity, a circumstance favouring reliability because a false complaint would carry consequences for the deceased herself as well as for the accused (at [15], [17]). Taking the circumstances as a whole, the court was satisfied the "highly probable" threshold was met (at [18]).
Orders Made
- Both Part A and Part B of the representations contained in paragraph 11 of the statement of 10 April 2018 are admissible as exceptions to the hearsay rule, the maker of the representations being unavailable.
Key Takeaways
- Under s 65(2)(c) of the Evidence Act 1995 (NSW), a first-hand hearsay representation by an unavailable person is admissible in criminal proceedings only where the objective circumstances make it "highly probable" the representation is reliable, a standard Campbell J confirmed sits above the balance of probabilities (at [11]).
- Consistent with Clarke (a Pseudonym) v The Queen [2017] VSCA 115, a court assessing admissibility under s 65(2)(c) must disregard other evidence that merely tends to prove the same asserted fact; the inquiry is confined to the circumstances surrounding the making of the representation itself (at [12]).
- The fact that a representation was made to an official acting in a formal capacity, where a false complaint would carry adverse consequences for the maker as well as the subject, is a circumstance capable of favouring reliability (at [15], [17]).
- A representor's potential to obtain some benefit from making a statement does not automatically defeat the reliability threshold under s 65(2)(c); the nature and weight of the supposed gain remain relevant to the overall assessment (at [16]).
- An advance ruling on admissibility under s 192A does not determine whether evidence will ultimately be accepted; the court emphasised that admitted evidence may still be rejected after all evidence is in and evaluated (at [19]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 65, 66A, 192A
Cases
- Clarke (a Pseudonym) v The Queen [2017] VSCA 115
- R v Singh (No 4) [2021] NSWSC 75