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Supreme Court 10 November 2022

R v Smith (No 1)

[2022] NSWSC 1567

Homicide
EVIDENCE HEARSAY EXCEPTIONS

Citation: R v Smith (No 1) [2022] NSWSC 1567
Court: Supreme Court of New South Wales
Date: 10 November 2022
Judge: Ierace J

Background

The accused faced trial in the Supreme Court charged with murdering a 75-year-old man at South Coogee between 16 and 21 December 2020. The Crown's case included CCTV footage, forensic evidence (fingerprints and DNA linking the accused to a frying pan near the body), and evidence placing the accused and deceased together in an adjacent apartment on the afternoon of Thursday 17 December 2020.

A witness who occupied the unit directly below the deceased's apartment had given accounts to police on 20 December and 6 January 2021, and to a journalist on 23 December 2020, describing noises she heard emanating from the apartment above. Those accounts were potentially relevant to narrowing the timeframe of the killing.

Following receipt of a subpoena to attend trial, the witness suffered a serious mental health incident and was admitted to a mental health unit. The Crown applied for leave to tender her prior representations as hearsay evidence under section 65 of the Evidence Act 1995 (NSW), given her unavailability.

Legal Issues

  • Whether the witness was "unavailable" to give evidence within the meaning of the Evidence Act 1995 (NSW)
  • Whether the witness's representations qualified for admission under the hearsay exception in section 65(2)(b) (representations made shortly after the asserted fact and unlikely to be fabricated) or section 65(2)(c) (representations whose reliability is highly probable)
  • If any exception applied, whether the evidence should nonetheless be excluded under section 135 or section 137 of the Act

Decision

Issue 1: Unavailability

Ierace J found that the witness was unavailable to give evidence. Clause 4(1)(c) of Part 2 of the Dictionary to the Act provides that a person is unavailable if they are mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability. The witness's mental ill-health, exacerbated by receipt of the subpoena, satisfied that test, and this was not disputed by the defence (at [19]).

Issue 2: Section 65(2)(b) exception

The court found that the conditions of section 65(2)(b) were satisfied. The violent attack on the deceased and ransacking of his apartment would have created significant noise, and the unusual nature of the event meant the witness was capable of recalling it for a considerable period, including when she spoke to police and the journalist. There was no evidence of a motive to fabricate, making fabrication unlikely (at [20]-[21]).

Issue 3: Section 65(2)(c) exception

The court declined to apply section 65(2)(c). That provision requires the court to be satisfied to a high degree of probability that the representations are reliable. A significant problem undermined that conclusion: the witness believed she heard the disturbance on 14 or 15 December 2020, whereas compelling evidence indicated the killing could not have occurred before 2pm on Thursday 17 December. That discrepancy indicated unreliability in at least one material respect, and there was no independent reference point to assess what she heard or when (at [22]).

Issue 4: Exclusion under section 137

Even though the representations were otherwise admissible (having satisfied section 65(2)(b)), Ierace J excluded them under section 137 of the Act. Without the witness being available for cross-examination, the reliability of her representations could not be tested. The court found that the resulting unfair prejudice to the accused outweighed the probative value of the evidence. The reasoning drew on a comparable approach taken in R v Woodrow [2016] ACTSC 59, where evidence from a witness with schizophrenia characterised by auditory hallucinations was excluded on the same basis (at [23]-[25]).

Orders Made

  • The application for leave to tender evidence of the witness's representations is refused, pursuant to section 137 of the Evidence Act 1995 (NSW).

Key Takeaways

  • A witness who suffers a serious mental health episode consequent on receiving a subpoena may be "unavailable" to give evidence within the meaning of clause 4(1)(c) of Part 2 of the Dictionary to the Evidence Act 1995 (NSW), satisfying the threshold condition for the section 65 hearsay exceptions (at [19]).
  • Satisfying one exception to the hearsay rule does not guarantee admission: under section 137 of the Act, a court must still exclude evidence if the danger of unfair prejudice to the defendant outweighs its probative value (at [23]-[25]).
  • Where an unavailable witness's representations cannot be tested by cross-examination and there are objective indicators of unreliability in the representations themselves, that combination can amount to significant unfair prejudice sufficient to warrant exclusion (at [22]-[23]).
  • An objective discrepancy between a witness's stated timeline and other compelling evidence in the Crown case can serve as a reference point for assessing the reliability of that witness's representations under section 65(2)(c), and may defeat an application for admission on that basis (at [22]).
  • In refusing admission under section 137, Ierace J followed the approach in R v Woodrow [2016] ACTSC 59, indicating consistency across jurisdictions in excluding untestable hearsay from witnesses with significant mental health conditions affecting reliability (at [24]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s s 65, 67, 135, 137, Dictionary Pt 2 cl 4

Cases
- Conway v R (2000) 98 FCR 204; [2000] FCA 461
- R v Kuzmanovic [2005] NSWSC 771
- R v Woodrow [2016] ACTSC 59