R v Dillon (No 3)

[2019] NSWSC 1537

Supreme Court

New South Wales

Medium Neutral Citation:	R v Dillon (No 3) [2019] NSWSC 1537
Hearing dates:	30 September; 1, 2, 8, 9, 10, 11, 12, 14, 22 October 2019
Date of orders:	22 October 2019
Decision date:	22 October 2019
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	See paragraphs 1 and 47
Catchwords:	CRIMINAL PROCEDURE - Admissibility of evidence - unavailability of witness to give evidence - exceptions to the hearsay rule – probative value substantially outweighed by risk evidence is misleading or confusing.
Legislation Cited:	Evidence Act 1995 (NSW), ss 32, 55, 65(3), 65(A) 165,
Cases Cited:	Alzawy v Coptic Orthodox Church [2016] NSWSC 1122 Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 Vickers v R [2006] NSWCCA 60
Category:	Procedural and other rulings
Parties:	Regina (Crown) Joshua Dillon (Accused)
Representation:	Counsel: Neil Adams SC (Crown) Luke Brasch (for the accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Rivera Legal (Accused)
File Number(s):	2016/217435

Judgment

1. On Tuesday, 22 October 2019 I made a ruling in relation to the admissibility under s 65(3) of the Evidence Act 1995 (NSW) of a transcript of the evidence given by Mr Waleed Obeid at a committal hearing on 14 December 2017. I announced my ruling and set out my principal findings, reserving my reasons. My ruling was as follows:

The evidence of Mr Obeid as recorded in the transcript of the committal proceedings on 14 December 2017 received on the voir dire as exhibit M is not admissible. In coming to that conclusion these are my principal findings:

1. I'm satisfied that Mr Obeid is not available because he is mentally unable to give evidence and it is not reasonably practicable to overcome that inability. In arriving at that conclusion I've relied upon my own observations of the evidence sought to be adduced from him, both before the jury and on the voir dire, and by what I regarded as the impressive evidence of Dr Selim.

2. I am not satisfied the transcript of the committal proceedings, or the recording of it for that matter, is admissible under s 65(3) of the Evidence Act 1995 (NSW) because evidence of the out of court representation by one person, namely in this case the accused, cannot be given by the out of court representation of another person, namely Mr Obeid, notwithstanding s 65(3). In that regard I rely upon the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594 [32] to [35].

3. I'm not of the view, contrary to Mr Brasch's argument with respect, that the statement attributed to the accused by Mr Obeid is confessional, rather had Mr Obeid been available to give evidence, it would have been admissible under s 66A. However, the primary ground of admissibility, if I may put it that way, of firsthand hearsay is immaterial to the question of whether the proposed tender is itself admissible. And I rely upon the judgment of Simpson J (as her Honour then was) in Vickers v R [2006] NSWCCA 60 at [63]-[64].

4. If I were wrong about findings 2 and 3, I would exercise my discretion under s 135 of the Evidence Act to exclude the evidence. I accept the evidence has probative value if accepted by the jury, and I'm not persuaded that it is unfairly prejudicial, given the evidence of Mr Al Mousawi. For that reason s 137 is not engaged. However, given Dr Selim's evidence as to the inherent unreliability of Mr Obeid's evidence, both in 2019 and in 2016 at the time he made the conflicting statements, I am of the view that the admission of the transcript of the committal transcript, or recording of the committal proceedings alone would be misleading.

5. That is, as I say, largely because of the issue of unreliability, the consideration that the jury may not have access to the statements of 20 July and 4 August 2016, and the inability of defence counsel to cross‑examine on those inconsistencies. I do not think that this effect could be adequately overcome, even by a detailed caution, or warning, under s 165, for the reason that it is not just a question of unreliability, which would cause the evidence to be misleading.

Factual background

2. Mr Dillon is standing trial for the murder of Mr Adam Abu-Mahmoud. The Crown case, as it has been refined by the trial process, is that on 18 July 2016 Mr Dillon fatally stabbed Mr Adam Abu-Mahmoud at premises occupied by Mr Dillon at Panania with the intention of inflicting grievous bodily harm, and not in self-defence or under extreme provocation.

3. Mr Obeid had been in the company of Mr Adam Abu-Mahmoud and a Mr Al Mousawi at Panania shops earlier in the evening of 18 July 2018. Mr Abu-Mahmoud offered an insult to Mr Dillon and two companions when they drove past returning from a gymnasium. The car pulled over, its occupants alighted and approached Mr Abu-Mahmoud and his companions to confront them. A fight started when Mr Abu-Mahmoud punched Mr Dillon about the left side of his face. This soon descended into a brawl with numerous other persons joining the fray in support of Mr Abu-Mahmoud and his companions.

4. Not without difficulty, Mr Dillon and his companions were able to extract themselves from the brawl and retreat; Mr Dillon in the car of his partner who happened to drive past and recognise him while the brawl was in full flight, and the others in the ute in which they had arrived. The applicant and his partner went directly home. His two companions travelled there via the home of one of them to inform that person’s mother about the brawl and the fact that treats of later violence had been made.

5. Mr Abu-Mahmoud was apparently not content with the inconclusive resolution of the brawl. Mr Obeid apparently said he knew where Mr Dillon lived. He, Mr Adam Abu-Mahmoud, and the latter’s brother, Mr Abdul Abu-Mahmoud, who had not been involved in the original affray, travelled to Mr Dillon’s home in Mr Abdul Abu-Mahmoud’s ute.

6. When the Abu-Mahmoud brothers and Mr Obeid arrived in the vicinity of Mr Dillon’s home, they parked nearby and armed themselves with tools from the toolbox. At about the same time as they arrived in the vicinity, Mr Dillon’s two companions pulled into his driveway in their ute. Mr Dillon was on the front porch nursing his baby son. Before his friends could alight from the vehicle he requested them to move it so that his partner could leave in her car with their son as Mr Dillon was apprehensive because of threats he perceived had been made at the brawl, that there may be reprisals from those he had been brawling with.

7. Before the ute could be moved Abdul Abu-Mahmoud and Adam Abu-Mahmoud rushed on to the property. Mr Obeid was apparently somewhere nearby. Mr Abdul Abu-Mahmoud smashed the driver’s door window of the ute with a hammer, the driver alighted from the vehicle and became engaged in a struggle with the hammer wielding Abdul Abu-Mahmoud, who was assisted by his brother Adam Abu-Mahmoud. The passenger in the ute apparently took cover attempting to hide himself behind Mr Dillon’s partner’s vehicle which was parked in front of the ute.

8. Mr Dillon ran inside taking his infant son to a position of safety with the baby’s mother. Arming himself with a knife taken from the knife block in the kitchen he ran outside to lend assistance to his friends. The driver was still grappling principally with Abdul Abu-Mahmoud. Mr Dillon perceived that Mr Adam Abu-Mahmoud had a weapon in his right hand. Initially he thought it was knife, then he considered it could be a gun given the content of some threats made during the brawl. He stabbed Adam Abu-Mahmoud, the expert evidence demonstrates, four times in the back from which the latter died soon thereafter.

9. When he gave evidence in his own defence at the trial Mr Dillon conceded in cross-examination that he stabbed Mr Adam Abu-Mahmoud with the intention of inflicting really serious injury upon him.

The issues

10. The principal issue at the trial was whether Mr Dillon intentionally stabbed Mr Adam Abu-Mahmoud in self-defence or the defence of another. In the alternative, the “partial defence” of extreme provocation was relied on.

Walid Obeid

11. Clearly Mr Obeid was a witness whom it may be supposed had material evidence to give in the trial. He made two statements to police: the first, dated 20 July 2016; and the second, dated 4 August 2016. In the first statement, he admitted being present at Panania shops during the brawl, but denied accompanying Adam Abu-Mahmoud and Abdul Abu-Mahmoud to 5 Anderson Avenue Panania. He said that he had been told about the stabbing later and only attended the corner of Marco Avenue and Carson Street, Revesby later, after receiving a message that Adam Abu-Mahmoud had been stabbed and was at that location with his brother Abdul waiting for an ambulance. To use a neutral expression, this account is plainly erroneous.

12. Mr Obeid knew Joshua Dillon and the car-passenger from school. Through them he knew the driver who had attended another local school. In his second statement he was apparently more forthcoming about what he knew of both the brawl at Panania shops and the events at Mr Dillon’s home.

The section 65 (3) representations relied on

13. The Crown Prosecutor seeks to tender two representations from the transcript of the committal proceedings heard on 14 December 2017. Those two representations arise out of questions Mr Obeid was asked which resulted in matters from the second statement being incorporated into the transcript. The first representation is as follows: (Exhibit VDM, page 62.25T Committal):

Q.   You say “I saw James Rivera hugging Adam, I saw [Joshua Dillon] there as well next to Adam and James Rivera but I couldn’t see what he was doing. I can’t remember seeing Abdul, I don’t know what he was doing. I can’t remember seeing [JTR] involved in the fight”, remember telling the police that?

A.   Yes.

This is about the events at the Joshua Dillon’s residence immediately before Adam Abu-Mahmoud was stabbed.

14. The second representation relied on is as follows (62.40 – 63.5T, committal transcript):

Q.   So you say in your second statement and only your second statement that [Joshua Dillon] said to Adam back at – pardon me – when the first fight ends a girl you say you know as Cara and says to [Joshua Dillon] “Jump in the car, jump in the car” is that right?

A.   Yes.

Q.   You say [Joshua Dillon] walked to the black car, heard [Joshua Dillon] say something about the baby being in the car?

A.   Yes.

Q.   Before he got in the black car you heard [Joshua Dillon] said to Adam, “Next time I see you, I’m gonna shank you, you dog”?

A.   Correct

This is said to have occurred when Mr Dillon was extricating himself from the brawl.

15. These representations are material to the Crown case. The first representation would be relied upon as evidence that James Rivera was struggling with Adam Abu-Mahmoud (not Abdul Abu-Mahmoud) at Joshua Dillon’s home when Joshua Dillon emerged from the home and stabbed Adam Abu-Mahmoud in the back. This account would tend to corroborate the evidence given by Abdul Abu-Mahmoud. Mr Rivera’s evidence is that he was wrestling or struggling with Abdul Abu-Mahmoud and did not see Joshua Dillon stab Adam Abu-Mahmoud.

16. The second representation is material because the words attributed to Joshua Dillon, “Next time I see you I’m gonna shank you, you dog” corroborate evidence given by Mr Al Mousawi in the trial. The significance of the evidence was that the threat, if accepted by the jury, is circumstantial evidence of Mr Dillon’s state of mind only a few minutes before he actually stabbed Adam Abu-Mahmoud. Mr Al Mousawi’s evidence was relied upon by the Crown as evidence of a statement of future intention on the part of Joshua Dillon.

The ground of admissibility relied on

17. As my ruling (at [1] above) makes clear, the Crown rely upon the exception to the hearsay rule created by s 65(3) Evidence Act which applies in criminal proceedings “if a person who made a previous representation is not available to give evidence about an asserted fact”: 65(1). The relevant provisions are:

…

(3)  The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied:

(a)  cross-examined the person who made the representation about it, or

(b)  had a reasonable opportunity to cross-examine the person who made the representation about it.

……….

(4)  If there is more than one defendant in the criminal proceeding, evidence of a previous representation that:

(a)  is given in an Australian or overseas proceeding, and

(b)  is admitted into evidence in the criminal proceeding because of subsection (3),

cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.

(5)  For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but:

(a)  could reasonably have been present at that time, and

(b)  if present could have cross-examined the person.

(6)  Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by:

(a)  the person to whom, or the court or other body to which, the representation was made, or

(b)  if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or

(c)  the person or body responsible for producing the transcript or recording.

…

18. Clause 4 of Part 2 of the Dictionary to the Evidence Act deals with the unavailability of a person to give evidence. Clause 4 provides as follows:

Unavailability of persons

(1)  For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:

(a)  the person is dead, or

(b)  the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or

(c)  the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or

(d)  it would be unlawful for the person to give the evidence, or

(e)  a provision of this Act prohibits the evidence being given, or

(f)  all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or

(g)  all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(2)  In all other cases the person is taken to be available to give evidence about the fact.

In respect of Mr Obeid, the Crown relied upon Clause 4(1)(c). In particular it is said that Mr Obeid is mentally unable to give evidence and it is not reasonably practicable to overcome that inability.

The evidence of unavailability

19. The question of Mr Obeid’s “unavailability” arose in quite unusual circumstances. He was in fact called to give viva voce evidence by audio-visual link on 15 October 2019, the fifth day of the trial. Initially he seemed able to answer the, admittedly leading and introductory, questions he was asked in chief. However, when asked questions in a non-leading form, difficulties soon arose. He was able to identify the ute in which Mr Dillon and his companions had arrived at Panania shops. But when asked, “What can you tell us about the people that were in the car, what did they do?” He responded “I don’t remember”. That was the first of seven such responses to significant questions recorded in the first three pages of the transcript of his evidence and before any narrative of what happened had emerged. In fact, no such narrative arose. When asked, “At some stage did a fight start?” He answered “Yes”. But to the follow-up question, “Tell us what you know about that?” He said:

A. I, sorry it's been a while, so.

The Crown then asked the following question:

Q.   All right now is it the situation at the moment you cannot remember, as you sit there today you can't remember?

….

A. It has been a while and not long since my father passed away and it's hard for me.

20. The Crown made application under s 32 Evidence Act for the witness to refresh his memory, by reference to his earlier statements. Mr Brasch of counsel, appearing for the accused, objected. In the absence of the jury, I was informed that there was medical evidence in the form of a report of Dr Natalie Selim, dated 9 October 2019 (Exhibit VDK; VDM), which indicated that Mr Obeid was: first, on the autistic spectrum; secondly suffering from an intellectual disability of moderate severity; and thirdly functionally illiterate. As a result of this state of affairs he also suffered from an anxiety disorder which had been aggravated by the death of his father.

21. The matter was complicated by the consideration that there are two, conflicting statements the second of which was made on 4 August 2016. By reference to Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 Mr Brasch argued that the second statement was not made at a time when the events were fresh in Mr Obeid’s memory for the purpose of s 32 Evidence Act. In any event given his illiteracy Mr Brasch objected to either statement being used to refresh the witness’ memory if that process consisted of passages being read aloud to him in the presence of the jury. Learned Counsel submitted that if an actual recollection was not provoked by that process, an unverified account which the witness had not adopted would be put before the jury to the potential prejudice of the accused. Indeed, as neither statement had been adopted by the witness by appropriate means acknowledging his illiteracy, attesting that the statement had been read back to him and that he had adopted its contents as truthful and accurate, there was a real question about whether either statement had been “written or made by the witness”: s 32(2)(b)(i) Evidence Act.

22. Despite these cogent grounds for objection, I decided to conduct a voir dire permitting passages to be read aloud to him in an attempt to determine whether any actual recollection could be revived or refreshed. When a passage about the commencement of the brawl at Panania shops was read from his first statement (359.40 - .50T) and he was asked whether that helped him remember what happened, he said, “A little bit”. However he was not able to spontaneously say who “the guys that jumped out of the car” were. After some questioning he said he recognised them (360.20T) but when again asked who they were he responded:

I'm getting too frustrated. It's too hot. I'm getting hot. (360.25T).

He was then asked about whether he had made a second statement and his response was, “Yes. Things in my head (sic)”.

23. He was read a passage from the second statement in which he had identified Mr Dillon, the driver and passenger and had been able to state how he knew them. When asked if he remembered telling the police about that, he said “Yes”. And when asked who they were he was able to repeat their names and correctly identify the shirt that Mr Dillon had been wearing (361.5T). However, I formed the impression that the names may have been “parroted”.

24. When asked what he saw in the fight (361.10T), he said, “I don’t remember that much. It’s been that long.” When the examiner persevered, he responded:

I have lost my memory. It's too long. You're making me feel like it was yesterday.

….

A. I don't know.

…

A. It's too much. This is too much for me. (361.20T)

He also said:

“It’s getting too much for me. I’m going downstairs. I’m going home. I told you, I got the doctor stuff. It’s doing my head in now”. (361.30T)

I interrupted the examination and disconnected the AVL (361.35T). I should record while giving this evidence he was alternately, holding his head in his hands or fanning himself with hands while rocking back and forth. He did not seem to be listening to the questions.

25. In her report of 9 October 2019, (Exhibits VDK and VDM), Dr Selim expressed the following opinion:

I believe that not only does [Mr Obeid] lack the capacity to sit through a court hearing and answer questions appropriately, it would be to his detriment to his already fragile mental health.

26. Dr Selim gave oral evidence on the voir dire on 17 October 2019. She is a legally qualified medical practitioner in general practice at the practice where Mr Obeid and his family normally attend. Dr Selim had first seen Mr Obeid only in January 2019, but she had access to the clinical records of the practice going back over many years. She said that his Autistic Spectrum Disorder had first been diagnosed in 2002 when Mr Obeid was “about 5” (488.35T). His Intellectual Disability was documented in 2013. By then he was already “in special education classes … so he would have been seen [about that disability] prior [thereto].”

27. She said Mr Obeid had a very basic ability to read and write and to comprehend what he is reading (489.20T). She gave an example about him being very keen to obtain a driver’s licence. He failed the examinations for a learner’s permit several times because he “has been unable to read and to understand the questions which are fairly simple, enough to be able to answer them correctly”. An attempt to sit the examination by means of a facilitator reading the questions to him and recording his answers was also unsuccessful. She said:

I am sure he would be able to read his name and read simple sentences, but anything more complex, or requiring a level of comprehension, he wouldn’t be able to do (489.25T)

28. After his earlier evidence and presentation had been described for the doctor, she said at (492.35T):

Look, I think that it was worth a shot, given that [AVL] is less stressful. But I don't think that, given it was tried and he showed that he was quite distressed in that situation, I think trying again is not going to get a better outcome, except to stress him further. And I was quite worried when I did see him last, about his mental state and about the level of anxiety and depression that he was demonstrating in a generalised setting, and I think any further stressors, like being questioned again, will only serve to further stress him because he won't … he's unlikely to be able to give any better responses than he already has.

She said that his increased anxiety in a court setting which she described as “acute” are due to his underlying autism and intellectual disability. These conditions give rise to an inability to comprehend and understand the questions. There is no treatment that would help him overcome these difficulties; certainly not in the short term, if at all. Dr Selim has referred Mr Obeid to a psychiatrist who is prepared to bulk-bill. Treatment might assist with the anxiety he is experiencing giving evidence. However she did not expect an appointment to be available before the end of the trial.

29. In cross-examination (496.25T), she explained that the difficulty is not so much with “memory itself”. Rather the difficulty is Mr Obeid fully comprehending what is being required of him. He would also be “very much” susceptible to suggestion and influence from persons in authority. I inferred this may include examining and cross-examining counsel, and perhaps interviewing police.

The submissions of counsel

30. Mr Crown submitted that on Mr Obeid’s presentation giving evidence and the evidence of Dr Selim, I would be satisfied that Mr Obeid was unavailable to give evidence because he is mentally unable to give the evidence and it is not reasonably practicable to overcome that inability. Mr Crown submitted that the juxtaposition of paragraph (c) and (b) of Clause 4(1) demonstrated that there is a difference for the purpose of determining unavailability between incompetence and inability to give evidence with the latter expression concerned with, here, mental inability rather than incompetence. A person may be competent, but unable, to give evidence.

31. Mr Crown argued that if this was my conclusion then s 65 Evidence Act was directly engaged. In particular, the terms of s 65(3) applying to evidence of a previous representation made in the course of giving evidence in another proceedings was directly engaged. The accused, by his then counsel (not Mr Brasch) cross-examined Mr Obeid about the representations even if only briefly and by way of direct challenge only.

32. Mr Brasch did not accept that Mr Obeid was unavailable to give evidence. He acknowledged the difficulties exhibited by Mr Obeid and the explanation given by Dr Selim. He submitted, however, that those difficulties could be overcome with patience and perseverance. He submitted that the s 65 exception to the hearsay rule was concerned only with firsthand hearsay. This might cover the first representation (see [14] above) but it could not cover the second (see [15] above). So far as the second representation was concerned, counsel submitted that the question was not so much whether the accused had uttered words threatening to stab the deceased; rather the question was whether they were true in the sense of him having actually meant it. In this regard he relied upon the decision of the High Court of Australia in Lee v The Queen (at [32] to [35]); and of the Court of Criminal Appeal in Vickers v R (at [63] – [64]). Counsel submitted that the second representation was really in the nature of an admission, relying upon ss 62 and 82 Evidence Act.

Consideration

33. The question of unavailability under Clause 4(1)(c) of the Dictionary to the Evidence Act arose in a civil context before Garling J in Alzawy v Coptic Orthodox Church [2016] NSWSC 1122. The argument there was that the plaintiff was mentally unable to give evidence. She also had the physical disability of a vibrato in her voice. Expert evidence indicated although she could not answer some questions, she could answer others even if she was not always able to give a rational answer. However, the account given to a qualified expert for the defendant was not irrational or improbable. Garling J found it was consistent with the plaintiff’s case.

34. His Honour said the following (at [32]):

In my view, where the issue is one of mental inability, the question for the Court is not whether the witness will give evidence which may not be accurate or reliable, or whether the witness may find it difficult to concentrate and give such evidence, or whether the witness, by reason of a mental impairment, can only give evidence for short periods of time. Rather, the question is simply whether the witness is mentally unable to give “the evidence” being the hearsay evidence which is sought to be adduced.

I agree that the issue of reliability is not to the point at the admissibility stage, as questions of admissibility are, subject to express exceptions, dealt with on the assumption that the evidence will be accepted. This arises out of the expression “if it were accepted” in s 55 Evidence Act.

35. Accepting as I do that inability to give evidence is different from incompetence under s 13 Evidence Act, I am persuaded that Mr Obeid is unable, but not incapable, of giving the evidence and that it is not reasonably practicable to overcome that inability. It is to be noted that in respect of the second condition I have just mentioned, there is a distinction between incompetence “where incapacity cannot be overcome” and inability which it “is not reasonably practicable to overcome”. There are doubtless shades or degrees of meaning involved, but they may be significant in a given case.

36. In coming to that conclusion, I have had regard to the abortive attempt to elicit the evidence from Mr Obeid, both initially before the jury and on the voir dire and the expert evidence of Dr Selim. In particular Dr Selim, who impressed me greatly, not only provided a medical opinion of the disabilities from which Mr Obeid suffered, but also explained how those conditions affected his ability to give evidence. One must always maintain one’s critical faculties about oneself when assessing a witness’s inability to give evidence. The possibility that the witness is feigning inability to give evidence to avoid having to give the evidence or for some other reason of their own should never be overlooked.

37. However, here I am satisfied that the combination of his autistic disorder, intellectual disability, resulting anxiety disorder, and the functional illiteracy render Mr Obeid unable to give the evidence sought to be adduced through him. His functional illiteracy in particular renders it not reasonably practicable to overcome his inability. It is not possible, particularly given that there are two conflicting statements, to provide him with an opportunity of refreshing his memory to give the evidence. His first statement, made when events may be supposed to be fresh in his memory, does not deal with the matters the Crown wishes to prove through him. His second statement, it seems to me, was not made in accordance with the dictum in Graham v The Queen. Were it otherwise, there remained the practical difficulties to which Mr Brasch referred of the inevitability of the statement being put before the jury whether or not it produced an actual recollection. In this regard, it’s notable that the Crown disavow any reliance upon either statement for the purpose of s 65(2). I am satisfied that it’s not reasonably practicable to overcome Mr Obeid’s inability to give evidence.

38. I turn then to the second and third findings (at [1]) above). Those findings, of course, relate to the second representation (see [15] above), that Mr Dillon said, “next time I see you, I’m gonna to shank you, you dog”. I accept – I am bound by – the views of Simpson J (as her Honour then was) expressed in Vickers v R [2006] NSWCCA 60 at [63] – [64] about the effect of the decision of the High Court in Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 that evidence of an out of court representation by one person, Mr Dillon, cannot be given by the out of court representation of another, Mr Obeid. In her Honour’s view this arises out of the passage in the unanimous judgment of the High Court (at [32] – [35]). Their Honours said:

The common law of evidence has long focused upon the quality of the evidence that is given at trial and has required that the evidence that is given at trial is given orally, not least so that it might be subject to cross-examination. That is why the exclusionary rules of the common law have been concerned with the quality of the evidence tendered - by prohibiting hearsay, by permitting the giving of opinions about matters requiring expertise by experts only, by the "best evidence rule" and so on. And the concern of the common law is not limited to the quality of evidence, it is a concern about the manner of trial. One very important reason why the common law set its face against hearsay evidence was because otherwise the party against whom the evidence was led could not cross-examine the maker of the statement. Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial

Over the years various inroads have been made on the rule that evidence at trial is essentially oral evidence of first-hand observation. Business record provisions of evidence legislation provide an obvious example.

It is not surprising, then, that Divs 2 and 3 of Pt3.2 of the Act provide certain exceptions to the hearsay rule. But the exceptions are of a limited kind. First, Div 2, which concerns the tender of certain hearsay statements at both civil and criminal trials is confined to "first-hand" hearsay: previous representations made by persons who had personal knowledge of the asserted facts. Division 3 makes other exceptions but they relate to business and like records.

The provisions for these exceptions are to be understood in light of the view expressed by the Law Reform Commission that "secondhand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility". As the Commission went on to point out, where A gives evidence of what B said that C had said, the honesty and accuracy of recollection of B is a necessary link in the chain upon which the probative value of C's statement depends. Estimating the weight to be attached to what C said depends on assessing B's evidence about it. (My emphasis)

39. I should add that in Vickers v The Queen (at [63] – [64]) Simpson J said:

That the exception there relied upon was the s 60 exception, and not the s 65 exception here relied upon, is immaterial. The High Court made it clear that evidence of an out of court representation by one person cannot be given by the out of court representation of another person. That is, however, what the Crown here seeks to establish. It cannot be done.

The present case neatly illustrates another point made by the High Court in Lee, at [32]–[35] concerning the reforms made by the Evidence Act to the common law hearsay rule. The Court pointed out that those reforms are limited (to permitting first-hand hearsay), and the reason for that limitation. That reason is the inherent unreliability of second-hand hearsay, affected as it is by the honesty and accuracy of the recollections of the person who is said to have heard, seen or otherwise perceived the making of the original representation, but who does not himself, or herself, actually give evidence. Here, if Mr Gould’s previous representations as to what he heard the appellant say were to be admitted, there was no way that his honesty or accuracy could be tested or could be evaluated by the jury. What would not be known would be his position in relation to the appellant at the time the appellant was said to have made the statements, the ambient noise, and any other distractions that might have affected his capacity accurately to capture what the appellant said. Those matters could be tested if he gave the evidence himself orally, but could not, in the circumstance that his account was given by the hearsay evidence of another witness, or in documentary form.

40. The significance her Honour’s observations, as I attempted to point out in the third finding, is that the restriction of exceptions to the hearsay rule to firsthand hearsay emphasised by the High Court in Lee applies across the board. It does not matter that the High Court was concerned with the s 60 exception, and the Court of Criminal Appeal in Vickers with the s 65 exception. Because of its inherent unreliability, second-hand hearsay is not covered by either exception.

41. Had M r Obeid been available to give evidence, he could have given evidence of threat he said Mr Dillon uttered at the end of the Panania shops brawl. That is because s 66A Evidence Act states that “the hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s … [inter alia] intention, knowledge or state of mind”. As I have said, if Mr Dillon uttered that threat it would have been admissible, in my judgment, under s 66A rather than as an admission under s 82 Evidence Act. This distinction does not matter. Mr Obeid’s out of court representation of an alleged out of court representation by Mr Dillon remains second-hand hearsay.

42. The first representation that Mr Rivera was struggling with Adam Abu-Mahmoud, not Abdul Abu-Mamoud would be admissible under s 65(3), but the second would not. The first representation is not second-hand hearsay. He had personal knowledge of the fact to be asserted by the evidence, if it were accepted.

43. Dealing with the fourth and fifth findings ([1] above), were I wrong about the admissibility of the second representation, and, in any event, in respect of the first representation, I would exercise my discretion under s 135 Evidence Act to exclude the evidence. I will repeat, I accept the evidence as of some probative value, if accepted by the jury. Not least because the second representation corroborates, and is corroborated by, the evidence of Mr Al Mousawi. The first representation is corroborated by, and corroborates, the oral evidence of Mr Abdul Abu-Mahmoud. For this reason I am not persuaded that this evidence is unfairly prejudicial to the accused, although of doubtful reliability. Therefore s 137 Evidence Act is not engaged.

44. However, given Dr Selim’s evidence as to the inherent unreliability of Mr Obeid’s evidence both in 2019 and 2016 at the time he made the conflicting statements, I am of the view that the admission of the transcript of the committal proceedings, or a recording, would be misleading.

45. I repeat the probative value of the representations is that, if accepted, they corroborate other Crown witnesses. However, I think that their probative value for that limited purpose is substantially outweighed by the danger that the evidence might be misleading or confusing. This is so even allowing for the considerations that the jury have evidence to the same effect in another form which they are well able to assess and Mr Brasch could insist on all of the relevant material including the conflicting statements, going in. As I say the Crown do not rely upon the conflicting statements for the purpose of s 65(2), but acknowledge that “they could go in”. However, even if this material was admitted into evidence for the limited purpose under s 136 Evidence Act of demonstrating the inconsistencies in Mr Obeid’s account, this may put Mr Dillon at a significant forensic disadvantage if the jury decide to use the second statement, which on the evidence seems to be inherently unreliable against Mr Dillon.

46. I am of the view that these matters relating to the misleading or confusing nature of the evidence, or the potential for forensic disadvantage to the accused could not be overcome by a warning under s 165 Evidence Act, having regard to Dr Selim’s evidence, that Mr Obeid’s evidence “may be unreliable” by reason of mental ill health. The assessment of the reliability of evidence is always a matter for a jury in a criminal trial. However, Dr Selim’s evidence really went far beyond the idea that the evidence “may be unreliable”. It would have been necessary for her to be recalled to give the evidence she gave on the voir dire in the trial before the jury. The effect of this procedure would be to put evidence before the jury that they would warned in the strongest terms may be unreliable. For this reason its probative value is substantially outweighed by the danger that the evidence might be misleading or confusing.

47. For these reasons I ruled that the representations the Crown sought to establish from the previous evidence of Mr Obeid were either inadmissible, or if not ought to be excluded in the exercise of my discretion.

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Decision last updated: 06 November 2019