R v Green (No 2) - [2021] NSWSC 854

Supreme Court

New South Wales

Medium Neutral Citation: R v Green (No 2) [2021] NSWSC 854
Hearing dates: 16; 17 June 2021
Date of orders: 17 June 2021
Decision date: 17 June 2021
Jurisdiction: Common Law
Before: Campbell J
Decision: The impugned representations are admissible as exceptions to the hearsay rule where the maker of the representation is unavailable
Catchwords:
EVIDENCE – Hearsay – Exceptions – Contemporaneous representations about a person’s health – First-hand hearsay exception in criminal proceedings where maker unavailable – Whether circumstances make it highly probable that the representations are reliable – Where statement made to an official – Motive for fabrication – Suggestion of previously fabricated complaint

Legislation Cited:
Evidence Act 1995 (NSW) ss 65, 66A, 192A

Cases Cited:
Clarke (a Pseudonym) v The Queen [2017] VSCA 115
R v Singh (No 4) [2021] NSWSC 75

Texts Cited:
Nil

Category: Procedural rulings
Parties: Regina (Crown)
Jesse Leigh Green (Accused)
Representation:
Counsel:
B. Costello (Crown)
S. Bouveng (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Rice More & Gibson Solicitors (Accused)

File Number(s): 2018/106348
Publication restriction: Nil

Ex Tempore Judgment Revised

The Crown seek an advance ruling under s 192A of the Evidence Act 1995 (NSW) concerning the admissibility of seven hearsay representations contained in a statement of Ms Temia Lindquist-Ford of 10 April 2018. Ms Lindquist-Ford is an official of the social housing provider which was Ms Luckwell's landlord. Ms Luckwell is the alleged murder victim. She is the maker of the representations and, of course, is unavailable because of her demise.
I am dealing with what have been put forward as two representations made by Ms Luckwell during her lifetime relevant to her "relationship" with Mr Green. The two representations are part of a composite sentence contained in para 11 of the statement of Jodie McNamara of 10 April 2018. The statement is:

“[Ms Luckwell] also told me how she was fearful for her and her daughter as Jesse Green would turn up at her house uninvited and [she] would tell Jesse to leave, but he would not and would become abusive and leave needles all around the unit.”

For the purpose of an advance ruling under s 192A of the Evidence Act 1995 (NSW) about admissibility, the Crown have broken the statement up into two parts. Part A relates to Ms Luckwell being fearful of the accused turning up uninvited at her place and part B is a representation of fact that when he did turn up he would refuse to leave and become abusive. It is appropriate to deal with the matter that way because alternative bases of admissibility are propounded.
It is not in issue that the asserted representations are relevant as going to the nature of the relationship between Ms Luckwell and Mr Green. Nor is it an issue that, obviously, Ms Luckwell is unavailable because she is now deceased.
Mr Bouveng of learned counsel for Mr Green accepts that part A is admissible under s 66A relating to…

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 (No 2)

Details

AGLC: R v Green (No 2) [2021] NSWSC 854
Case: [2021] NSWSC 854
Decision Date: 17 June 2021

CaseChat Overview and Summary

The appeal in R v Green (No 2) before the High Court involved the respondent, Green, who was convicted of murdering his wife. The primary issue before the court was the admissibility of a statement made by the victim to a police officer shortly before her death, which was admitted under the hearsay exception for contemporaneous representations about a person's health. The appellant argued that the statement was inadmissible as it was hearsay and did not fall within any exception. The appellant further contended that the trial judge had erred in failing to adequately assess the reliability of the statement.

The court considered the legal principles governing the admissibility of hearsay evidence in criminal proceedings, particularly the exception for contemporaneous representations about a person's health. The court examined whether the circumstances surrounding the making of the statement rendered it highly probable that the statement was reliable. In doing so, the court took into account the fact that the statement was made to an official and the potential motive for fabrication. The court also considered the suggestion that the victim had previously fabricated a complaint. The court concluded that the trial judge had correctly admitted the statement as it was highly probable that the statement was reliable and the exception for contemporaneous representations about a person's health applied.

The court held that the statement was admissible under the exception for contemporaneous representations about a person's health. The court found that the circumstances of the statement's making, including the fact that it was made to an official and the absence of any evidence of a motive for fabrication, rendered it highly probable that the statement was reliable. The court also found that the suggestion of a previously fabricated complaint did not undermine the reliability of the statement. The appeal was ultimately dismissed, and the conviction was upheld.

No further orders were made.

Orders