Lee v The Queen

Case [1998] HCA 60

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

NATHAN LEE  APPELLANT

AND

THE QUEEN  RESPONDENT

Lee v The Queen (S20-1998) [1998] HCA 60
30 September 1998

ORDER

  1. Appeal allowed.

  1. Set aside the order of the Court of Criminal Appeal of New South Wales made on 5 May 1997 dismissing the appeal to that Court against conviction.  In lieu thereof, order that the appeal to that Court be allowed, the conviction be quashed, and there be a new trial.

On appeal from the Supreme Court of New South Wales

Representation:

T A Game SC with S J Odgers for the appellant (instructed by Arden & Associates)

G S Hosking SC with D M Woodburne for the respondent (instructed by Office of the Director of Public Prosecutions (New South Wales))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Lee v The Queen

Evidence – Hearsay rule – Previous representation by witness including alleged confession by accused – Whether entire previous representation could be admitted as prior inconsistent statement – Whether report of confession could be used to prove the truth of the alleged confession.

Evidence Act 1995 (NSW), ss 60, 137.

  1. GLEESON CJ, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ.   At the appellant's trial, evidence was admitted of out of court statements made by a witness which included a report of a confession made by the appellant to that witness.  The evidence of these out of court statements was given because the witness gave evidence at the trial denying (or at least not admitting) that he had heard the appellant make these confessional statements.  The evidence that the witness had made earlier statements in which he had said that he had heard the appellant confess was treated at the trial as evidence of the truth of the alleged confession.

  2. At common law, evidence of prior inconsistent statements could not have been used in this way. It was held at the appellant's trial, and on appeal to the Court of Criminal Appeal, that s 60 of the Evidence Act 1995 (NSW) ("the Act") permitted the tribunal of fact to treat the evidence of the prior statements of the witness as evidence of the truth of the confession reported in those statements.

  3. Section 60 provides that:

    "The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation."

    The question in this appeal is whether s 60 permitted an out of court statement that is itself a report of what someone else said, to be used as proof of the truth of what was reportedly said.

    The facts

  4. Nathan Lee (the appellant) was indicted in the District Court of New South Wales on a charge that on 21 March 1995, when armed with a pistol, he assaulted Patricia Edith Jones with intent to…

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Details
AGLC
Lee v The Queen [1998] HCA 60
Case
[1998] HCA 60
Decision Date

CaseChat Overview and Summary

In *Lee v The Queen*, the High Court of Australia considered an appeal by Nathan Lee against his conviction for assault with intent to rob. The prosecution's case relied, in part, on a written statement made by a witness, Romeo George Calin, which contained an alleged confession by the appellant. The central dispute concerned the admissibility of this statement under the hearsay provisions of the *Evidence Act 1995* (NSW).

The legal issues before the High Court were whether section 60 of the *Evidence Act 1995* (NSW) permitted a previous representation, which was itself a report of what another person said, to be admitted as proof of the truth of what was reportedly said. Specifically, the Court had to determine if Mr Calin's written statement, which recounted words allegedly spoken by the appellant, could be used to prove that the appellant had indeed made those statements and, by extension, that he had committed the robbery.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial. The Court reasoned that section 60 of the *Evidence Act 1995* (NSW) allows hearsay evidence to be admitted if it is relevant for a purpose other than proving the truth of the asserted fact. However, it does not permit a statement that is itself hearsay (a report of what someone else said) to be admitted to prove the truth of the original, unrepresented assertion. In this case, Mr Calin's statement was a previous representation, and its admission to prove the truth of the appellant's alleged confession would contravene the hearsay rule, as section 60 was not intended to override the hearsay rule in such circumstances.

Orders

Orders of the court

1.

Appeal allowed.

2.

Set aside the order of the Court of Criminal Appeal of New South Wales made on 5 May 1997 dismissing the appeal to that Court against conviction. In lieu thereof, order that the appeal to that Court be allowed, the conviction be quashed, and there be a new trial.

Background

Background to the litigation

Section 60 provides that:"The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation."The question in this appeal is whether s 60 permitted an out of court statement that is itself a report of what someone else said, to be used as proof of the truth of what was reportedly said.The facts Nathan Lee (the appellant) was indicted in the District Court of New South Wales on a charge that on 21 March 1995, when armed with a pistol, he assaulted Patricia Edith Jones with intent to rob her. Mrs Jones was the owner of a video store in Paddington. Two men came into her shop at about 8.15 pm on 21 March 1995. One produced a gun and demanded money. She was later to describe this man as "Asian in appearance" with "a full round face ... black hair ... [and] hooded eyes". (It was common ground that the appellant was of Asian appearance.) Mrs Jones responded to the demand for money by picking up a cast iron tape dispenser and throwing it at the man with the gun and then picking up the stool on which she had been sitting and starting to jab at him across the counter. The man with the gun pointed it at her and made a motion with his hand. Nothing happened. He then made a stronger motion with his hand and the gun discharged. Mrs Jones smelt the gunpowder and was momentarily deafened and blinded by the discharge. Seeing that the man who had fired the gun had picked up the cash register, but had fallen on the floor, she again hit him with the stool. The men left empty‑handed. Mrs Jones shut and locked the shop door behind them. A short time later, at about 8.25 pm, two police officers saw the appellant and another man in Kings Cross Road. The appellant was found to have a handgun tucked in the front of his jeans and a further search revealed a black holster. He was sweating profusely. The two men were arrested. The appellant told police that two other men "did the holdup and they ran out and gave me the gun". The other man who was arrested, Romeo George Calin, told police that he had seen the appellant in the street and asked him to repay $80 he owed him. Mr Calin told police that the appellant had said "Don't bother me I have just done job, I fired two shots". Mr Calin was interviewed at the police station and a written statement was prepared for and signed by him. That statement repeated the same story, saying, in part:"3. On Tuesday 21 March 1995, roughly eight thirty I was just walking up the street, near the Hyatt, where the Oz Rock is in Kings Cross. I saw this bloke who owes me eighty dollars. I only know him from the street, an acquaintance I met a couple of times and a few months ago I lent him the eighty dollars to help him out with rent and that.4. He is Asian, pretty chubby, dark hair, I don't know his name I just know him from the street. When I saw him, he was walking fast up past the Hyatt, He walked past me and I saw he was sweaty and that. I said to him, 'Where's my eighty dollars, you owe it to me.' He said, 'No leave me alone leave me alone.' I said, 'I'm not fuckin going to leave you alone, til you give me my eighty bucks, Where is it.' He said, 'I haven't got it, leave me alone, cause I'm running because I fired two shots.' I said, 'What do you mean you fired two shots.' He said, 'I did a job and the other guy was with me bailed out.'"After giving this statement Mr Calin was allowed to go home.

Evidence

Evidence Before The Court

Section 59 of the Act provides:"59 The hearsay rule - exclusion of hearsay evidence(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.(2) Such a fact is in this Part referred to as an asserted fact." A "previous representation" is defined in the Dictionary to the Act as "a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced". A "representation" is defined to include, among other things, "an express or implied representation (whether oral or in writing)"[4], while a representation contained in a document is taken to have been made by a person if the representation "was recognised by the person as his or her representation by signing, initialling or otherwise marking the document"[5].[4]par (a) of the definition of "representation".[5]cl 6(b) of Pt 2 of the Dictionary. "Representation" is often used in the law to refer to words that are intended to induce action or inaction by the person who hears or reads them. It may, therefore, seem to be an unusual word to use in this context. But it is clear from the Interim Report of the Law Reform Commission on evidence[6] that, in the proposals that were later formulated in the Act, the term "representation" was used to apply to statements and to conduct and was used to encompass all that those statements or that conduct would convey to the observer. It is also clear that the proposal was intended to resolve"the issue of whether the proposed rules should apply to implied assertions as well as express assertions, by recommending that a distinction be drawn between intended and unintended implied assertions, with the latter outside any hearsay rule"[7].In its Interim Report, the Commission went on to state why it excluded unintended implied assertions from the operation of a hearsay rule and its exceptions. Chief among those reasons was the conclusion that it is unlikely that the person making some implied assertion would deliberately attempt to mislead if the implied assertion was not intended[8].[6]Australia, The Law Reform Commission, Evidence, Report No 26 Interim, (1985).[7]Australia, The Law Reform Commission, Evidence, Report No 26 Interim, (1985), vol 1 at par 684 (footnote omitted).[8]Australia, The Law Reform Commission, Evidence, Report No 26 Interim, (1985), vol 1 at par 684. Section 59 must be understood in this light. The rule's operation requires consideration first of why it is sought to lead evidence of something said or done out of court (a previous representation). What is it that that "previous representation" is led to prove? In particular, is it sought to lead it to prove the existence of a fact that the person who made the representation intended to assert by it? The fact that the statement or the conduct concerned might unintendedly convey some assertion is not to the point. The inquiry is about what the person who made the representation intended to assert by it.

Decision

Reasons for decision

GLEESON CJ, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ CJ, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

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Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ, CJ, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

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