Citation: R v Forrest (No 3) [2025] NSWSC 1238
Court: Supreme Court of New South Wales
Date: 7 November 2025
Judge: Yehia J
Background
The accused faces a single count of murder under s 18(1)(a) of the Crimes Act 1900 (NSW). The Crown alleges that on the night of 25 September 2023, the accused shot and killed a man at a large rural property near Mudgee, and that the deceased's body was subsequently placed inside a tree trunk and burnt.
The Crown's case rests substantially on eyewitness accounts. One of the two alleged eyewitnesses to the shooting was Christopher Gillespie, the long-serving property manager. Gillespie died in an accidental death in April 2024, making him unavailable to give evidence at trial.
Because Gillespie could no longer testify, the Crown applied under s 65 of the Evidence Act 1995 (NSW) to admit his prior representations as hearsay evidence. Those representations included statements made to three civilian witnesses (James Gillespie, Suanne Peacey, and Wade Patterson) and accounts given during police interviews on 17 and 25 October 2023. The Crown also sought to adduce three intercepted telephone calls to contextualise the police interview.
Legal Issues
- Whether Gillespie's representations to civilian witnesses were admissible under s 65(2)(b) as statements made "shortly after" the asserted fact occurred and in circumstances making fabrication unlikely.
- Whether those representations, and his statements to police, were admissible under s 65(2)(c) as representations made in circumstances that make it "highly probable" they are reliable.
- Whether any parts of the police interview and intercepted calls were admissible under s 66A (representations by persons who lack capacity to give evidence about the fact).
- What the phrase "shortly after" means for the purposes of s 65(2)(b), and how criminal involvement by the maker affects the reliability analysis under s 65(2)(c).
Decision
Representations to civilian witnesses (s 65(2)(b) and (c)): Yehia J found that certain representations made by Gillespie to James Gillespie were capable of satisfying the "shortly after" requirement in s 65(2)(b), and were made in circumstances making fabrication unlikely. The representations to Suanne Peacey and Wade Patterson were assessed under s 65(2)(c). The judgment (in the portion provided) addresses in detail the contested question of how soon after the relevant events a statement must be made to qualify as "shortly after," drawing on Harris v R and R v Tarantino.
Representations to police (s 65(2)(c)): Yehia J was not persuaded that Gillespie's representations to police were made in circumstances making it highly probable they were reliable. Four factors drove that conclusion. First, the statements were not spontaneous but were made a substantial period after the alleged murder. Second, Gillespie gave conflicting versions between his 17 October and 25 October 2023 interviews, even while remaining consistent on the core allegation that the accused shot the deceased. Third, he was not forthcoming about his own role in disposing of the body. Fourth, and most significantly, Gillespie was himself present at the murder and was at the very least involved in burning the body, meaning he was criminally concerned in the events. By the time he spoke to police, he was almost certainly aware that investigators suspected a homicide, creating a powerful incentive to minimise his own role and emphasise the accused's.
Exclusion of police interview material: Because the representations to police did not satisfy s 65(2)(c), that evidence was excluded. The three intercepted calls, which the Crown sought to adduce only to contextualise the police interview, were consequently also not admitted.
Consistency of representations: Yehia J acknowledged that consistency across multiple representations can be relevant to assessing the "circumstances" of reliability under s 65(2)(c), citing R v Ambrosoli, Sio v The Queen, and Williams v The Queen. However, the internal inconsistencies between Gillespie's two police accounts, combined with his criminal involvement, outweighed the consistency he showed on the shooting itself.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 65(2)(c) of the Evidence Act 1995 (NSW), a hearsay representation is only admissible where the circumstances make it highly probable the representation is reliable. This is a demanding standard, not merely a balance of probabilities.
- Criminal involvement by the maker of a representation is a weighty consideration against reliability. Where the maker was present at the alleged offence and participated in concealing it, the court found a strong inference that the maker would seek to minimise their own role when speaking to investigators.
- Consistency across multiple out-of-court statements can count in favour of reliability under s 65(2)(c), but internal inconsistencies between separate accounts, particularly to police, can negate the benefit of broader consistency.
- The phrase "shortly after" in s 65(2)(b) is not defined by a fixed time period. The court's analysis drew on the specific circumstances of when and to whom representations were made relative to the occurrence of the asserted fact.
- Where intercepted communications are tendered solely to contextualise other hearsay material, their admissibility is derivative. Exclusion of the primary hearsay evidence brought down the associated contextual material as well.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Evidence Act 1995 (NSW), ss 59, 65(2)(b), 65(2)(c), 66A, 67
Cases
- R v Singh (No 4) [2021] NSWSC 75
- Harris v R (2005) 158 A Crim R 454; [2005] NSWCCA 432
- R v Tarantino [2019] NSWSC 939
- R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
- Williams v The Queen (2000) 119 A Crim R 490; [2000] FCA 1868