R v Green (No 4)

[2021] NSWSC 856

Supreme Court

New South Wales

Medium Neutral Citation:	R v Green (No 4) [2021] NSWSC 856
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 transfer application for housing assistance is admissible as a business record
Catchwords:	EVIDENCE – Relevance – Business record – Undated document signed by deceased – Document does not specify accused – Multiple bases advanced for application – Viewed in context of other contested evidence
Legislation Cited:	Evidence Act 1995 (NSW) ss 69, 192A
Cases Cited:	Nil
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

1. The next question I am dealing with relates to the admissibility of a document issued by the Department of Family and Community Services, being an application for housing assistance, obviously completed by Ms Luckwell.

2. Mr Bouveng of learned counsel, who appears for the accused, properly concedes that the document is a business record for the purpose of s 69 of the Evidence Act 1995 (NSW). However, he submits that it is not admissible because it is not shown to be relevant. The bases upon which he founds that submission are, first, the document is undated. Ms Luckwell seems to have inserted her date of birth in the place provided to date the document. Second, the information provided in response to questions 25 and 26 of the document, which is an application for transfer, about why her current accommodation is unsuitable cannot be shown to relate to her "relationship", such as it may be, with the accused. This is the primary basis upon which the Crown propounds its relevance. For example, Mr Bouveng points out that Ms Luckwell said that the accommodation was substandard, dangerous or unhealthy. She also said it was unsafe or unstable for taking a child out of care in response to question 25. In response to question 26 she has indicated, of the three substantive options provided, that they all apply.

3. Mr Bouveng says her third assertion, of domestic or family violence, cannot be relevant here because that is not shown to be the nature of the relationship, if any, between Ms Luckwell and Mr Green. The assertion that her child in her care is at risk, again, is not relevant to the matters in issue, although the third box is also ticked which relates to threats, violence and/or harassment by another person.

4. I also observe, by way of additional context from the document itself, that in response to question 31, "[a]re there any other reasons you need housing assistance?" Ms Luckwell wrote, "[d]idn't expect a foul neighbour" and also drew a kind of pictogram, the relevance of which is a bit hard to deduce.

5. In response to those matters, Mr Costello, Crown Prosecutor, points out that there will be other evidence led at the trial and, by reference to the bundle which I have admitted for present purposes as Exhibit VDA, he refers to the statement of Ms Jodie McNamara dated 10 April 2018. Ms McNamara is an employee of Homes North, the community housing provider which was responsible for the social housing in which Ms Luckwell lived. In that statement, by reference to the complaint form I have already ruled to be admissible, Ms McNamara states that she handed Ms Luckwell the transfer application form at about the time she made the complaint.

6. In a later statement dated 7 June 2019, she also stated that, from her inspection of the records of Homes North, Ms Luckwell did not complain about any person other than Mr Green and there is a reference to a statement of Ms Shaiina Hancock dated 23 May 2018. Ms Hancock, a friend of Ms Luckwell, states that Ms Luckwell told her that she had been "seeing" Mr Green and was having problems with him and wished to break it off. I interpolate that Ms Hancock's statement will be the subject of argument later.

7. Section 55 of the Evidence Act, as is well-known, is in the following terms:

The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. (My emphasis.)

8. A fact in issue in these proceedings, it is accepted by Mr Bouveng, is the nature of the relationship between Mr Green and Ms Luckwell. For a period of time they were neighbours living in adjoining apartments in the same social housing block in Tamworth. There is no issue that the Crown is entitled, as part of its case, to establish the nature of the relationship. Nor is there any issue that evidence of violence, aggression or other untoward conduct by Mr Green in that context would be relevant.

9. As I have indicated, the real issue that Mr Bouveng ventilates is, first, because the document is undated it cannot be shown to have been brought into existence at a time relevant to the current proceedings and, second, because of the nature of the complaints made it cannot be established that they are directed at Mr Green.

10. I will observe that a person may have more than one complaint about their social housing accommodation. It is apparent from the answer to question 31 that at least part of Ms Luckwell’s complaint related to the conduct of a neighbour and, if one accepts the statement of Ms McNamara of 7 June 2019, Ms Luckwell did not make a complaint about anybody except Mr Green.

11. I am also satisfied that Ms McNamara's statement of 10 April 2018, if it were accepted, establishes the relevant time when the document was created.

12. Having regard to these factors together, I am satisfied that the transfer application, as it is called, could rationally affect the assessment of the probability of the existence of a fact in issue even if only it is accepted in conjunction with other perhaps contested evidence which is also accepted. In the circumstances, for these reasons, I rule under s 192A of the Evidence Act that the application for housing assistance is admissible as a business record.

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Decision last updated: 15 July 2021