Neill-Fraser v Tasmania (No 2) - [2019] TASSC 11

[2019] TASSC 11

COURT: SUPREME COURT OF TASMANIA

CITATION: Neill-Fraser v Tasmania (No 2) [2019] TASSC 11

PARTIES:  NEILL-FRASER, Susan Blyth
  v
  STATE OF TASMANIA

FILE NO:  2506/2015
DELIVERED ON:  22 August 2018
DELIVERED AT:  Hobart
HEARING DATE:  30, 31 October, 1 November 2017, 8, 9 March 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Evidence – Hearsay – Exceptions – Generally – Respondent sought to cross-examine witness about whether she had made a prior inconsistent statement – Applicant objected to grant of leave on the basis the representation amounted to second hand hearsay – Previous representation was made with reference to a diary, which now cannot be found – Whether representation in diary came from personal knowledge and was made when "fresh in the memory" of witness – Witness had personal knowledge of asserted fact and diary was written when representation was fresh in her memory.

Graham v The Queen (1998) 195 CLR 606; R v XY [2010] NSWCCA 181, cited.
Evidence Act 2001 (Tas), ss 62, and 66
Aust Dig Criminal Law [2796]

REPRESENTATION:

Counsel:
             Applicant:  T Percy QC, C Carr, P Smallwood
             Respondent:  D G Coates SC, J Shapiro
Solicitors:
             Applicant:  Galbally & O'Brien Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASSC 11
Number of paragraphs: 22

Serial No 11/2019
File No 2506/2015

SUSAN BLYTH NEILL-FRASER v STATE OF TASMANIA (NO 2)

REASONS FOR RULING BRETT J

22 August 2018

This ruling concerns the evidence of a witness, Sandra Junee Miedecke, called by the respondent, and proof of an asserted prior inconsistent statement of that witness.
Mrs Miedecke's evidence concerns an interaction between the yacht on which she was travelling, and a man in a dinghy, in the area relevant to this case, in January 2009. I do not intend to explain in detailed terms the relevance of the evidence to the issues in this case, but it is clear, and accepted by all parties, that the timing of the interaction affects the probative value of other evidence, and Mrs Miedecke's evidence is intended to establish that timing, and, in particular, to exclude the possibility that the interaction took place on the night on which the crime is this case was alleged at trial to have been committed, 26 January 2009.
Mrs Miedecke's evidence is that on a night around that time, she was on a yacht with two friends. On 24 January, around Australia Day, they had set sail on the yacht to travel to Bruny Island. However, their journey was cut short by adverse weather, and they returned to the marina. The interaction with the man in the dinghy occurred during the course of the journey back to the marina. After this interaction, the boat moored for the night. Her evidence was that on the following morning she did not see "a yacht half sunk or police boats or police cars, anything out of the ordinary". The yacht subsequently departed again and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] TASSC 11
Decision Date: 22 August 2018

CaseChat Overview and Summary

In the case of Neill-Fraser v Tasmania (No 2), the respondent sought to cross-examine a witness about a prior inconsistent statement. The applicant objected, arguing that the representation amounted to second-hand hearsay because it referred to a diary that could not be located. The issue was whether the representation in the diary came from the witness's personal knowledge and was made when the representation was "fresh in the memory" of the witness.

The court had to determine whether the witness had personal knowledge of the asserted fact and whether the diary was written when the representation was fresh in her memory. The court found that the witness had personal knowledge of the fact and the diary was written when the representation was fresh in her memory. Therefore, the representation in the diary was not hearsay.

The court granted the respondent's application to cross-examine the witness about the prior inconsistent statement. The court found that the witness's personal knowledge and the contemporaneous nature of the diary entry were sufficient to satisfy the requirements for the exception to the hearsay rule. The court's decision highlights the importance of considering the circumstances in which a representation was made when determining whether it is hearsay.

Orders