Citation: R v Green (No 3) [2021] NSWSC 855
Court: Supreme Court of New South Wales
Date: 17 June 2021
Judge(s): Campbell J
Background
The Crown sought an advance ruling under s 192A of the Evidence Act 1995 (NSW) on the admissibility of seven hearsay representations made by the alleged murder victim. Those representations were contained in a statement given by a social housing official, Ms Lindquist-Ford, who had received complaints from the victim about the accused, her neighbour. Because the victim was deceased, she was unavailable to give evidence herself.
The representations concerned the nature of the relationship between the victim and the accused, as well as the victim's feelings and state of mind at the time the complaints were made. The defence opposed admission of all seven representations, arguing the Crown had not established to the requisite standard that the circumstances made it highly probable each representation was reliable.
Legal Issues
- Whether six of the seven representations satisfied the first-hand hearsay exception under s 65(2)(c) of the Evidence Act 1995 (NSW), in that the circumstances made it "highly probable" each was reliable
- Whether representation (f), concerning the victim's feelings about reporting the matter to police, was alternatively admissible as a contemporaneous statement of feelings or state of mind under s 66A
- Whether representation (g), characterising the accused's conduct in evaluative terms, was admissible as evidence of an asserted fact
Decision
Representations (a), (b), (c) and (d): s 65(2)(c) satisfied
Campbell J was satisfied that the objective circumstances surrounding the making of these representations met the statutory threshold of high probability of reliability (at [10]). The representations were made to a housing official for the purpose of a formal complaint under the victim's social housing lease, and the accuracy of any such complaint would be subject to investigation. Those circumstances, considered objectively, were sufficient to satisfy s 65(2)(c) (at [8]).
Representation (e): context only
The orders record that representation (e) contains no asserted fact but is relevant as context. The judgment does not elaborate separately on the reasoning for this outcome.
Representation (f): s 66A as an alternative basis
Campbell J found that this representation, in which the victim explained she had not reported the matter to police because she was scared and worried the situation might escalate, related to her feelings rather than to the subject matter of the formal complaint itself (at [12]). It therefore did not fall squarely within the circumstances supporting admission under s 65(2)(c). However, to the extent it was a contemporaneous statement of feelings or state of mind, the court admitted it under s 66A (at [12]).
Representation (g): inadmissible lay opinion
This representation arose from a separate conversation in which the victim described the accused as still behaving in a pejorative way. Campbell J held the statement was one of lay opinion rather than an asserted fact, and therefore did not satisfy the requirements for admissibility under s 65(2)(c) (at [13]).
Orders Made
- Representations (a), (b), (c), (d) and (f) are admissible as exceptions to the hearsay rule
- Representation (e) contains no asserted fact but is relevant as context
- Representation (g) is inadmissible
Key Takeaways
- Under s 65(2)(c) of the Evidence Act 1995 (NSW), the admissibility inquiry focuses on the objective circumstances surrounding the making of each representation, not on an assessment of the representation's actual reliability, which remains a matter for the trial (at [9]-[10]).
- Representations made to a housing official in the course of a formal complaint process, where accuracy would be subject to scrutiny, can constitute circumstances making it highly probable that those representations are reliable for the purposes of s 65(2)(c) (at [8]).
- A contemporaneous statement by a deceased person about their feelings or state of mind may be admissible under s 66A even where it does not satisfy the circumstances test under s 65(2)(c), provided it is genuinely contemporaneous with those feelings (at [12]).
- Not every statement made during a conversation with an official falls within the same admissibility framework: representations that stray from the subject matter of the complaint may need to be assessed against a different exception (at [12]).
- A deceased person's evaluative or characterising remark about another person, not amounting to an assertion of fact, does not satisfy the requirements of s 65(2)(c) and is inadmissible as hearsay evidence of fact (at [13]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 65, 66A, 192A
Cases
- R v Singh (No 4) [2021] NSWSC 75
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32