Citation: R v MR, JB and CS (young persons) (No 2) [2024] NSWSC 250
Court: Supreme Court of New South Wales
Date: 14 March 2024
Judge(s): Huggett J
Background
Three young persons, identified only by initials, face a joint trial for the murder of a fourth person. The Crown alleges that MR stabbed the deceased, while JB and CS participated in the broader criminal enterprise. After the stabbing, MR and JB fled through bushland and passed a residential property at Ropes Crossing, where CCTV equipment captured both video and audio footage of the pair.
On that recording, MR can be heard saying: "Told ya cuz, I told ya I was gonna stab him. I got him good." A witness, AE, also gave evidence that she heard MR tell a person identified as BS that he was the one who stabbed the deceased. Separately, AE overheard BS make certain statements to MR, and a telephone intercept recorded a conversation between BS and MR.
This interlocutory judgment resolved three admissibility disputes ahead of trial: whether the CCTV recording of MR's words could be used against his co-accused JB, whether AE's evidence of MR's admission to BS was admissible against MR, and whether AE's evidence of BS's words to MR (and the telephone intercept of their conversation) was admissible against MR.
Legal Issues
- Whether MR's words captured on CCTV constituted admissible hearsay evidence against JB under section 65(2)(b) of the Evidence Act 1995 (NSW), given that MR, as a co-accused, is not available to give evidence for the Crown
- Whether the CCTV evidence should nonetheless be excluded under section 137 of the Evidence Act on the basis that its probative value is outweighed by the danger of unfair prejudice to JB
- Whether AE's evidence of MR's admission to BS was admissible against MR
- Whether AE's evidence of BS's words to MR, and the telephone intercept recording, were admissible against MR, and whether either category of evidence should be excluded under section 137
Decision
The MR CCTV evidence (against JB)
Huggett J held that MR's words on the CCTV recording satisfied the requirements of section 65(2)(b) of the Evidence Act. MR was "unavailable" to give evidence for the Crown by operation of section 17(2), which renders an accused person incompetent to give evidence for the prosecution. The temporal requirement in section 65(2)(b) (that the representation be made "shortly after" the asserted fact) was satisfied because MR's statement came within minutes of the stabbing.
Her Honour was also satisfied that the circumstances made fabrication unlikely. The statement was spontaneous, made while MR and JB were still fleeing the scene, and recorded without any apparent awareness of surveillance equipment. Crucially, MR's assertion "I got him good" was made at the same moment and was against his own interests, lending reliability to the whole utterance. The argument that the statement was mere bravado or an "off the cuff" remark was not accepted. Her Honour further concluded that the probative value of the evidence was not outweighed by the danger of unfair prejudice to JB, and declined to exclude it under section 137.
The BS admission evidence (against MR)
AE's evidence that she heard MR tell BS he was the person who stabbed the deceased was ruled admissible against MR. The judgment records this ruling without extensive elaboration in the portion of the text available.
The BS/MR evidence (against MR)
Huggett J admitted AE's evidence of what BS said to MR, and the telephone intercept evidence of their conversation, for a non-hearsay purpose against MR. Her Honour rejected the submission that the evidence should be excluded under section 137. The risk that the jury might draw impermissible inferences (for example, treating the statements as hearsay or opinion evidence, or preferring the inference that BS was simply reminding her son of his defence) was a matter capable of being addressed through appropriate jury directions. The directions required would not be illogical, difficult, or incomprehensible. Her Honour noted that no evidence was actually tendered regarding MR's cognitive capacity or language disorder, which had been raised in submissions.
Orders Made
- The MR CCTV evidence is admissible (against JB)
- The BS admission evidence is admissible (against MR)
- The BS/MR evidence is admissible (against MR)
Key Takeaways
- Under section 65(2)(b) of the Evidence Act 1995 (NSW), a co-accused is treated as "unavailable" to give evidence for the prosecution by operation of section 17(2), opening the door to hearsay evidence of that person's prior representations being admitted against other accused persons in a joint trial.
- The "shortly after" temporal requirement in section 65(2)(b) is not confined to seconds; representations made within minutes of the relevant event can satisfy the test, consistent with the approach taken in R v Tarantino [2019] NSWSC 939.
- A statement made spontaneously, while fleeing a crime scene, without awareness of recording equipment, and at the same time as a self-inculpatory remark, may satisfy the "unlikely to be a fabrication" condition in section 65(2)(b), even where the statement could arguably be characterised as bravado.
- Where section 137 is invoked to exclude evidence admitted under section 65, the court weighs probative value against unfair prejudice; the availability of jury directions to remedy potential misuse is a relevant consideration in that balancing exercise.
- Submissions about an accused's cognitive or language impairment, where no supporting evidence is tendered on the admissibility application, carry limited weight in the section 137 analysis.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW), ss 17, 59, 65, 137
Cases
- Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37
- Prasad v R [2020] NSWCCA 349
- R v MR, JB and CS (young persons) [2024] NSWSC 194
- R v Rose [2002] NSWCCA 455
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- R v Singh (No 4) [2021] NSWSC 75
- R v Tarantino [2019] NSWSC 939
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32