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District Court 17 May 2022

R v Bagster

[2022] NSWDC 300

Homicide
CRIME UNLAWFUL KILLING CRIMINAL PROCEDURE TRIAL VOIR DIRE HEARSAY HEARSAY RULE

Citation: R v Bagster [2022] NSWDC 300
Court: District Court of New South Wales
Date: 17 May 2022
Judge(s): Haesler SC DCJ

Background

The accused stood trial for the unlawful killing of a woman referred to throughout proceedings as Jane Birch. This was a retrial, the first jury having been unable to reach a verdict in 2021. The deceased's body had been found tied and upside down in a wheelie bin.

At the first trial, a witness named Christine Wright gave evidence that Jane Birch had told her she had been bashed, hog-tied, and gagged by the accused. At that earlier trial, Haesler SC DCJ admitted that evidence under the s 65(2) exception to the hearsay rule in the Evidence Act 1995 (NSW), allowing it as proof of the asserted facts. By the time of the retrial, however, Ms Wright had also died.

The prosecution sought to tender a transcript of Ms Wright's evidence from the first trial, including the portions in which she recounted what Jane Birch had told her. The defence did not object to the tender of those parts of the transcript reflecting Ms Wright's own personal observations, but objected to the portions containing Jane Birch's assertions, arguing that this constituted inadmissible third-hand hearsay.

  • Whether s 65(3) of the Evidence Act 1995 (NSW) permits the tender, in a second trial, of a transcript of a deceased witness's evidence from the first trial, where that evidence itself contained hearsay representations made by another unavailable person (the deceased victim).
  • Whether s 62 of the Evidence Act, which limits hearsay exceptions to firsthand hearsay (representations made by someone with personal knowledge of the asserted fact), operates to restrict the scope of s 65(3).
  • Whether, even if admissible under s 65(3), the impugned portions of the transcript should be excluded under s 137 of the Evidence Act on the basis that their probative value was outweighed by the danger of unfair prejudice to the accused.

Decision

The central contest was whether s 65(3), which removes the hearsay rule from evidence of a previous representation made in the course of giving evidence in an Australian proceeding, operated independently of s 62, or whether s 62's firsthand hearsay requirement applied to constrain it. The prosecution argued that s 65(3) was a broad, facilitative provision permitting the tender of all evidence given by the witness in the earlier proceedings, without requiring a court in the second trial to re-examine how any embedded hearsay was dealt with at the first trial.

The court accepted the defence's position. Section 62 applies to all of Division 2 of Part 3.2 of the Evidence Act, which includes s 65(3). That section limits references to "a previous representation" in Division 2 to representations made by a person who had personal knowledge of the asserted fact. Jane Birch's assertions to Ms Wright were representations made by someone other than Ms Wright, meaning they could not satisfy s 62's personal knowledge requirement when tendered through Ms Wright's transcript. The leading commentary in Cross on Evidence confirms this view, noting that s 65(3) is restricted to firsthand hearsay by operation of s 62. As a result, the portions of Ms Wright's evidence repeating Jane Birch's assertions were not admissible under s 65(3).

The defence also argued, in the alternative, that if the evidence were admissible, it should be excluded under s 137 of the Evidence Act. The defence contended that the jury's inability to see and hear Ms Wright rendered the evidence too remote and unfairly prejudicial. The court rejected this argument. Section 65(3) is designed precisely to place evidence of unavailable witnesses before later tribunals. The safeguard against unfairness lies within s 65 itself, which only permits evidence that was subject to cross-examination or a reasonable opportunity for cross-examination. A hearsay warning under s 165(1)(a) of the Evidence Act remained available to address any residual concern.

The court also considered whether the Criminal Procedure Act 1986 (NSW), which provides that pre-trial orders from earlier proceedings are binding in subsequent trials unless contrary to the interests of justice, required a different outcome. The court found it did not. The earlier ruling admitting Jane Birch's assertions at the first trial (via Ms Wright under s 65(2)) was not carried forward into the second trial simply by virtue of that order. Ms Wright's subsequent death fundamentally altered the evidentiary position, and the question of admissibility at the retrial required fresh analysis under s 65(3).

Orders Made

  • The prosecution may only tender those portions of Ms Wright's evidence from the first trial that set out her representations of what she herself saw, heard, or otherwise perceived, as identified in Voir Dire Exhibit C.

Key Takeaways

  • The District Court held that s 62 of the Evidence Act 1995 applies across all of Division 2 of Part 3.2, including s 65(3), confining the exceptions to the hearsay rule to firsthand hearsay (representations made by a person with personal knowledge of the asserted fact).
  • Where a witness at a prior trial repeated a deceased person's out-of-court assertions, a transcript of that earlier evidence does not become wholesale admissible under s 65(3) at a retrial. The embedded hearsay (the absent declarant's assertions) must independently satisfy s 62's personal knowledge requirement.
  • Section 65(3) is not a freestanding facilitative provision that permits all prior evidence to be tendered without scrutiny of how each layer of hearsay was treated at the earlier proceeding.
  • The inability of a new jury to observe a witness's demeanour from a transcript does not, by itself, ground exclusion under s 137. The safeguards built into s 65, particularly the cross-examination requirement, and the availability of a hearsay direction under s 165(1)(a), were found sufficient to address concerns about unfair prejudice.
  • A pre-trial order from a first trial binding under the Criminal Procedure Act 1986 does not automatically carry forward an earlier hearsay ruling where the evidentiary circumstances have materially changed, such as the death of the witness who gave the relevant evidence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW): ss 59, 62, 65(2), 65(3), 65(6), 67, 137, 165(1)(a)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Lee v The Queen (1998) CLR 594; [1994] HCA 60
- Li v R [2003] NSWCA 386
- Puchalski v R [2007] NSWCCA 220
- R v Taber [2007] NSWCA 116
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32