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Supreme Court 28 February 2023

R v Bidner (No 2)

[2023] NSWSC 943

Homicide
CRIMINAL LAW EVIDENCE EXCEPTION TO THE HEARSAY RULE APPLICATION OPPOSED BY THE ACCUSED ABSENCE OF A WITNESS STATEMENT RELIANCE ON ADAM V THE QUEEN

Citation: R v Bidner (No 2) [2023] NSWSC 943
Court: Supreme Court of New South Wales
Date: 28 February 2023
Judge(s): Wilson J

Background

The accused stood trial in connection with the death of a man referred to as Mr Mears. The Crown sought to lead evidence that the accused had made admissions to a woman, Imogen Walker Bietmann, about the circumstances of the death. Critically, Ms Walker Bietmann had never provided a formal statement and had never been electronically recorded giving any account of what the accused allegedly told her.

The Crown's evidence consisted of three witnesses: a civilian (Ms Mears, the deceased's daughter) and two police officers. Each witness claimed that Ms Walker Bietmann had, on separate occasions, repeated to them what the accused had purportedly said to her. When Ms Walker Bietmann was called on the voir dire (a preliminary hearing to determine admissibility), she denied both that the accused had ever spoken to her about the death and that she had made any of the statements attributed to her by the three witnesses.

The Crown applied under section 65(2) of the Evidence Act 1995 (NSW) to admit the evidence of those three witnesses as an exception to the hearsay rule, relying on the High Court's decision in Adam v The Queen.

  • Whether the evidence of what Ms Walker Bietmann allegedly said to three separate witnesses was admissible under section 65(2) of the Evidence Act 1995 (NSW) as a hearsay exception.
  • Whether the principles in Adam v The Queen applied where no formal or recorded statement existed from the person who had allegedly heard the accused's admissions.
  • Whether admitting the evidence would amount to leading inadmissible hearsay upon hearsay.

Decision

Wilson J rejected the Crown's application and excluded the evidence. Her Honour distinguished the present circumstances from those in Adam v The Queen, where the witness whose earlier account was in question had given a digitally recorded interview providing a full account of events. That recording made the witness's prior statements effectively undeniable. Here, Ms Walker Bietmann had never made any formal statement, had declined to provide one to police on multiple occasions, and had never been electronically recorded. There was no fixed, verifiable prior account against which her denial could be tested.

Her Honour held that section 65 of the Evidence Act is confined to first-hand hearsay, as made clear by Division 2 of Part 3.2 and the definition in section 62. The evidence sought to be tendered was hearsay upon hearsay: three witnesses reporting what Ms Walker Bietmann said the accused had said. Admitting it would not place before the jury any clear or incontrovertible proof that Ms Walker Bietmann ever made those statements.

Wilson J also noted that even if the Crown obtained leave under section 38 to cross-examine Ms Walker Bietmann as a hostile witness, she could reasonably be expected to maintain her denials. Any attempt to then adduce the three witnesses' accounts would, in those circumstances, amount to the improper use of prior inconsistent statement evidence condemned in earlier case law: calling a witness known to be hostile for the sole purpose of placing inadmissible facts before the jury.

The underlying rationale for the hearsay rule, her Honour observed, is to prevent unreliable chains of assertion from reaching the jury. Permitting evidence that "someone said someone said something happened" would defeat that rationale entirely. The evidence was excluded in all its proposed forms.

Orders Made

• The Court excludes the evidence of any attempt to extract statements from Ms Walker Bietmann, or evidence-in-chief from Ms Mears, Detective Senior Constable Cooper or Senior Constable Smithers as to what was allegedly said by the accused.

Key Takeaways

  • Section 65(2) of the Evidence Act 1995 (NSW) operates only in relation to first-hand hearsay, as defined by section 62; it does not extend to hearsay upon hearsay, where the evidence involves one person reporting what another person claimed to have heard.
  • The High Court's reasoning in Adam v The Queen depends materially on the existence of a prior recorded or verifiable account; where no such statement exists, the analogy with Adam does not hold.
  • A witness's persistent denial that they made certain out-of-court statements, combined with the absence of any formal or recorded account, leaves the Crown without the foundation necessary to invoke the section 65 exception.
  • The Supreme Court confirmed that admitting unrecorded, multi-layered hearsay risks placing before the jury nothing more than a chain of assertions incapable of reliable verification, which is precisely the mischief the hearsay rule is designed to prevent.
  • Calling a witness known to be hostile solely to create a platform for placing prior inconsistent statements before the jury remains an improper forensic approach, and the concern applies with even greater force where those prior statements are themselves only evidenced by hearsay accounts.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), sections 38, 62, 65(2); Division 2 of Part 3.2

Cases
- Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57