Citation: R v Batak (No 4) [2022] NSWSC 518
Court: Supreme Court of New South Wales
Date: 28 April 2022
Judge(s): Hulme J
Background
The accused stood trial for murder arising from an incident in the early hours of 2 April 2019, in which two intruders entered a flat and the accused's housemate was killed. A witness, referred to here as the housemate's flatmate, had spoken to police at the scene and later at hospital on the day of the incident. Those recorded conversations included a description of the two intruders and were admitted without objection.
The Crown sought to go further. It proposed to adduce evidence of the same witness's sworn testimony given on two later occasions: once at a pre-trial hearing in the Supreme Court on 16 February 2022, and once during an unrelated trial on 14 March 2022. The Crown's case was that the witness's later sworn evidence revealed his original description of the intruders to be false in certain respects.
The witness refused to give evidence at the murder trial. The Crown therefore relied on the hearsay exception in s 65(2)(d) of the Evidence Act 1995 (NSW), which permits prior representations by an unavailable maker to be admitted where those representations were against the maker's interests at the time and were made in circumstances making them likely reliable. The accused objected.
Legal Issues
- Whether the witness's prior sworn testimony was admissible under s 65(2)(d) of the Evidence Act 1995 (NSW) as a first-hand hearsay exception for unavailable makers
- Whether the representations were "against the interests" of the witness at the time they were made
- Whether the representations were "made in circumstances that make it likely that the representation is reliable"
Decision
Issue 1: Admissibility framework under s 65(2)(d)
The parties agreed the witness was "unavailable" within the meaning of the Evidence Act Dictionary, having flatly refused to give evidence at trial (at [8]). The only live question was whether his prior sworn testimony satisfied both limbs of s 65(2)(d): that the representations were against his interests and that the circumstances made them likely reliable (at [9]). The High Court's decision in Sio v The Queen (2016) 259 CLR 47 governed the analysis, requiring the trial judge to be affirmatively satisfied that the representations are likely to be reliable evidence of the fact asserted (at [27]).
Issue 2: Likely reliability of the representations
The court declined to find the circumstances made reliability likely. Being on oath, without more, does not inherently mean evidence is reliable, a point reinforced by provisions such as s 165 of the Evidence Act (at [17]). The witness was a convicted serious drug and firearms offender who was clearly reluctant, repeatedly declining to answer questions by describing himself as "not comfortable" doing so (at [18]). The Crown invited the court to examine the content of the evidence itself to find internal coherence pointing to reliability, but the court rejected that approach: the s 65(2)(d) assessment focuses on the circumstances in which the representations were made, not on the content of the representations themselves (at [20]). The court was not affirmatively satisfied the circumstances made the evidence likely reliable (at [21]).
Issue 3: Against the interests of the maker
The court also expressed misgivings about the first limb. Although the witness disclosed uncharged criminality and made admissions that could damage his reputation, the court was not satisfied he appreciated that his evidence was against his interests in any penal sense (at [23]-[25]). Where a person does not understand that what they are saying may carry adverse consequences, the fact of speaking cannot reliably be taken as the kind of disincentive to falsify that the exception presupposes (at [26]). The court left this issue open, ruling primarily on the reliability limb.
Orders Made
- Evidence of the prior representations not admissible
Key Takeaways
- Under s 65(2)(d) of the Evidence Act 1995 (NSW), a trial judge must be affirmatively satisfied that prior representations by an unavailable witness were both against the maker's interests and made in circumstances making them likely reliable; neither a finding of mere possibility nor an inference from the content of the statements themselves suffices (at [27]).
- Giving evidence on oath does not, by itself, establish that the circumstances make a representation likely reliable for the purposes of s 65(2)(d) (at [17]).
- A witness's evident reluctance to answer questions, criminal history, and vulnerability to competing loyalties are circumstances properly taken into account when assessing reliability under s 65(2)(d) (at [18]).
- The court confirmed, following Sio v The Queen, that the reliability assessment under s 65(2)(d) is directed at the circumstances surrounding the making of the representation, and a court should not bootstrap that assessment by reference to the substantive content of the representations sought to be admitted (at [20]).
- Where it is unclear whether a witness appreciated that their statements were against their own interests, that uncertainty can weaken both the "against interests" limb and the broader reliability analysis, because awareness of adverse consequences is part of what gives such representations their probative weight (at [23]-[26]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 65, 128
Cases
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32