R v Green - [2019] ACTSC 43

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Green
Citation:	[2019] ACTSC 43
Hearing Date:	5 February 2019
DecisionDate:	26 February 2019
Before:	Burns J
Decision:	See [23] and [26]-[27]
Catchwords:	EVIDENCE – Admissibility of previous representations – hearsay evidence – maker of previous representations not available –whether the exception in s 65 of the Evidence Act 2011 (ACT) applies – previous representations fall into two categories – representations made by unavailable witness to third parties regarding what the complainant said to the witness – representations made by unavailable witness to third parties regarding witness’ observations of the complainant – complainant made a statutory declaration repudiating complaint – whether the Crown’s purpose is to adduce representations for the purpose of establishing the truth of those representations – consideration of admissibility of prior consistent statements of complainants in non-sexual proceedings – whether previous representations are first-hand hearsay – consideration of relevancy of previous representations
Legislation Cited:	Crimes Act 1900 (ACT) s 28 Evidence Act 2011 (ACT) pt 3.2; ss 55, 59, 60, 62, 65, 66, 67, 135, 137
Cases Cited:	Fox v General Medical Council [1960] 3 All ER 225 Kilby v The Queen (1975) 129 CLR 460 Papakosmos v The Queen [1999] HCA 37; 196 CLR 297 R v Warner (1995) 78 A Crim R 383 R v White [1999] 1 AC 210 Vickers v The Queen [2006] NSWCCA 60; 160 A Crim R 195
Texts Cited:	LexisNexis Butterworths, Cross on Evidence: Australian Edition vol 1, (at service 205)
Parties:	The Queen (Applicant/Crown) Timothy Green (Respondent/Accused)
Representation:	Counsel Ms S Naidu (Applicant/Crown) Mr R Thomas (Respondent/Accused)
Solicitors ACT Director of Public Prosecutions (Applicant/Crown) Prudential Legal (Respondent/Accused)
File Numbers:	SCC 204 of 2018; SCC 205 of 2018

BURNS J

The accused, Timothy James Green, is awaiting trial on an indictment alleging that on two occasions on 13 March 2018 he choked, suffocated or strangled his mother, EC, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT). The Crown case is that in the early hours of 13 March 2018, at the complainant’s home, the accused placed his hands around her neck on one occasion and squeezed her neck. It is also alleged he pushed EC onto a bed, and pushed a cushion down onto her head causing her to have difficulty breathing. The accused’s trial is listed to commence on 4 March 2019.

By an application in proceeding dated 8 January 2019 the Crown seeks orders pursuant to s 65(2) of the Evidence Act 2011 (ACT) (‘the EA’) that it be permitted to lead evidence at the accused’s trial of previous representations made by Nicola Holmes, on the ground that Ms Holmes is now deceased and, as such, is unavailable to give evidence at the trial. Ms Holmes was a neighbour of EC. EC and Ms Holmes were acquainted, as for a time Ms Holmes’ daughter played with EC’s grandchild.

The Crown alleges that after the offences occurred, EC left her home and walked…

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.

Continue reading R v Green

Details

AGLC: R v Green [2019] ACTSC 43
Case: [2019] ACTSC 43
Decision Date: 26 February 2019

CaseChat Overview and Summary

The case of R v Green involved a dispute between the Crown and the accused, Green, in the ACT Supreme Court. The Crown sought to adduce hearsay evidence through previous representations made by an unavailable witness, who was the complainant in the case. The complainant had made a statutory declaration repudiating the complaint, and the accused objected to the admissibility of the hearsay evidence on the grounds that it was not admissible under section 65 of the Evidence Act 2011 (ACT).

The court was required to decide whether the previous representations made by the unavailable witness to third parties were admissible as evidence under the hearsay exception in section 65 of the Evidence Act 2011 (ACT). The court had to consider whether the previous representations were first-hand hearsay, and whether the Crown's purpose in adduccing the representations was to establish the truth of those representations. The court also had to consider the relevancy of the previous representations in the context of the case.

The court held that the previous representations made by the unavailable witness fell into two categories: representations made by the witness to third parties regarding what the complainant said to the witness, and representations made by the witness to third parties regarding the witness’ observations of the complainant. The court found that the representations made by the witness to third parties regarding what the complainant said to the witness were first-hand hearsay and were not admissible under section 65 of the Evidence Act 2011 (ACT) because the Crown's purpose in adducing the representations was to establish the truth of those representations. However, the court found that the representations made by the witness to third parties regarding the witness’ observations of the complainant were not first-hand hearsay and were admissible under section 65 of the Evidence Act 2011 (ACT) because they were relevant to the case.

The court ordered that the previous representations made by the unavailable witness to third parties regarding the witness’ observations of the complainant were admissible as evidence, but the previous representations made by the witness to third parties regarding what the complainant said to the witness were inadmissible as evidence.

Orders

Orders of the court

See [23] and [26]-[27]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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