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Supreme Court 26 September 2023

R v Woods; R v Hayes; R v McLachlan; R v Harding; R v Farnsworth

[2023] NSWSC 1163

Homicide

Citation: R v Woods; R v Hayes; R v McLachlan; R v Harding; R v Farnsworth [2023] NSWSC 1163
Court: Supreme Court of New South Wales
Date: 26 September 2023
Judge: Yehia J

Background

Five accused are on trial for the alleged murder of a man on 14 January 2020, each having pleaded not guilty. The Crown called a witness, Mr Ney, whose evidence was considered an important part of its case. The Crown intended to rely on his account of conversations and meetings to establish a joint criminal enterprise to kill or cause grievous bodily harm to the deceased.

Mr Ney proved to be a poor witness. He was repeatedly unable to recall the events and conversations about which he was asked. He gave evidence of suffering from an anxiety disorder with associated memory impairment, though no medical records were produced to confirm a diagnosis.

Because Mr Ney could not remember the relevant events even after being permitted to review his police statements, the Crown obtained leave on numerous occasions to have portions of those statements read aloud as part of his evidence under s 32(3) of the Evidence Act 1995 (NSW). The result was that the Crown's case on key factual matters rested largely on out-of-court representations Mr Ney had made to police in 2020, rather than on live testimony from his own recollection.

  • Whether the evidence read aloud from Mr Ney's police statements under s 32(3) of the Evidence Act constituted hearsay evidence for the purpose of s 165(1)(a), which identifies hearsay as a category of evidence that may be unreliable.
  • Whether the Crown's use of that procedure transformed the representations from hearsay into non-hearsay evidence, thereby removing the basis for a reliability warning.
  • Whether a direction should be given to the jury warning that Mr Ney's evidence may be unreliable, and identifying the reasons for that potential unreliability, under s 165(2) of the Evidence Act.

Decision

Yehia J accepted the application by the accused and held that s 165(1)(a) of the Evidence Act was enlivened. The section applies to evidence of a kind that may be unreliable, including hearsay evidence. Her Honour was not persuaded that the procedure under s 32(3), which allows portions of a witness's prior statements to be read aloud when the witness lacks recollection, transforms the nature of the underlying representations from hearsay into non-hearsay for the purpose of a s 165 warning.

The Crown argued that the evidence, having been read aloud under s 32(3), formed part of Mr Ney's own testimony and was therefore not hearsay. Yehia J characterised s 32 as a machinery or facilitative provision concerned with the mechanics of memory refreshing, not with the admissibility of evidence. The critical point was that the evidence had been adduced for a hearsay purpose: to prove the truth of what Mr Ney had told police. The procedural mechanism by which it was placed before the jury did not change that character.

Her Honour further observed that even if the evidence were not strictly hearsay, s 165 does not provide an exhaustive list of categories of unreliable evidence. A warning would have been appropriate in any event given the poor quality of the evidence overall. She was comfortably satisfied that a warning was warranted.

Yehia J also found that Mr Ney's wholesale inability to recall the relevant events created a significant forensic disadvantage for the accused. Their representatives could not meaningfully test or challenge his police accounts through cross-examination. The direction was to be given at the conclusion of Mr Ney's evidence and repeated during the summing up.

Orders Made

• Grant the application for a s 165 warning to be directed to the jury regarding the unreliability of Mr Ney's evidence

Key Takeaways

  • The Supreme Court held that s 32(3) of the Evidence Act, which permits portions of a witness's prior statement to be read aloud when the witness lacks recollection, does not convert hearsay representations into non-hearsay evidence for the purposes of a s 165 reliability warning.

  • Where evidence is adduced for a hearsay purpose (that is, to prove the truth of the facts asserted in an out-of-court statement), the procedural vehicle used to place that evidence before the jury does not alter its hearsay character.

  • Section 165 does not provide an exhaustive list of categories of unreliable evidence. Even in the absence of a hearsay characterisation, a court may direct a jury to exercise caution about evidence it is satisfied may be unreliable.

  • A significant forensic disadvantage arises when an accused cannot meaningfully cross-examine a witness on an out-of-court account because the witness has no recollection of the underlying events. That disadvantage supports the giving of an unreliability warning under s 165(2).

  • The Victorian Court of Appeal's reasoning in Debresay v The Queen [2017] VSCA 263, concerning the inherent limitations of hearsay evidence, was noted as relevant context, though Yehia J found it distinguishable on its particular facts.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 32, 32(2), 32(3), 38, 63(2), 165, 165(1)(a), 165(2), 165B

Cases
- CSR Ltd v Amaca Pty Ltd [2016] VSCA 320
- Debresay v The Queen [2017] VSCA 263