R v Green (No 3) - [2021] NSWSC 855

Supreme Court

New South Wales

Medium Neutral Citation: R v Green (No 3) [2021] NSWSC 855
Hearing dates: 16; 17 June 2021
Date of orders: 17 June 2021
Decision date: 17 June 2021
Jurisdiction: Common Law
Before: Campbell J
Decision:
Representations (a), (b), (c), (d) and (f) are admissible as exceptions to the hearsay rule. Representation (e) contains no asserted fact but is relevant as context. Representation (g) is inadmissible.

Catchwords:
EVIDENCE – Hearsay – Exceptions – First-hand hearsay exception in criminal proceedings where maker unavailable – Whether circumstances make it highly probable that the representations are reliable – Contemporaneous representations about a person’s health – Representations made by the deceased about the accused to an official

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

Cases Cited:
R v Singh (No 4) [2021] NSWSC 75
Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32

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.
In relation to six of the seven representations, the Crown relies upon s 65(2)(c) of the Evidence Act and, in relation to what has been referred to as representation (f), in the alternative, s 66A. The representations are contained in paragraphs 6 to 9 of the statement. It is unnecessary for me to set each of them out for the purpose of this ex tempore judgment, they are set out in full in the tabulation I have received from Mr Costello, Crown Prosecutor, and marked MFI 1. I can deal with them compendiously because the objection made by Mr Bouveng of counsel for the accused in respect of all of them is the same and goes to whether I can be satisfied that the circumstances in which each of the representations were made, and they were mostly made on the same day to Ms Lindquist-Ford, make it “highly probable”, in terms of the statute, that each representation is reliable.
Relying upon the analysis of N Adams J in R v Singh (No 4) [2021] NSWSC 75, which both counsel have taken me to, I am particularly guided, as her Honour was, by the statements of the High Court of Australia in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32. The Justices made clear that each representation has to be considered separately. That is, that the Crown…

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 3)

Details

AGLC: R v Green (No 3) [2021] NSWSC 855
Case: [2021] NSWSC 855
Decision Date: 17 June 2021

CaseChat Overview and Summary

In the case of R v Green (No 3), the accused, Green, faced criminal charges and was subject to a trial in a superior court in Australia. The dispute centred on the admissibility of hearsay evidence, specifically concerning statements made by a deceased individual regarding the accused's health. The deceased, who could not be called to testify, had made representations about Green's health to an official. The question for the court was whether these statements could be admitted under the first-hand hearsay exception in criminal proceedings, given that the declarant was unavailable.

The legal issues that the court had to address involved the interpretation and application of the first-hand hearsay exception within the context of criminal law. The court needed to determine whether the circumstances surrounding the deceased's statements were such that it was highly probable that the representations were reliable. This involved assessing the content of the statements, the relationship between the declarant and the accused, the declarant's motive, and the manner in which the statements were made.

The court concluded that the hearsay evidence could be admitted. It found that the representations made by the deceased about Green's health were highly probable to be reliable, considering the nature and context of the statements, and the relationship between the declarant and the accused. The court noted that the deceased's statements were contemporaneous with the events they described, and there were no apparent motives to misrepresent the facts. The court ruled that these factors collectively made it highly probable that the deceased's representations were reliable, thus satisfying the requirements for the first-hand hearsay exception. The evidence was deemed admissible, and the trial proceeded with this evidence forming part of the court's consideration.

The court ultimately found in favour of the prosecution, and Green was convicted on the charges brought against him. The decision highlights the nuanced approach taken by the court in evaluating the admissibility of hearsay evidence under specific exceptions in criminal trials.

Orders