R v Green (No 6)

[2021] NSWSC 1306

Supreme Court

New South Wales

Medium Neutral Citation:

R v Green (No 6) [2021] NSWSC 1306

Hearing dates:

5; 6; 7 July 2021

Date of orders:

7 July 2021

Decision date:

07 July 2021

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

The impugned representation is admitted pursuant to s 66 of the Evidence Act

Catchwords:

EVIDENCE – hearsay – maker of representation available and has already given evidence – where representation made was not sought to be elicited from the witness by counsel – Whether admissibility turns on the witness giving evidence of the representation

EVIDENCE – credibility – whether questions asked in cross-examination implicitly suggested the evidence was fabricated or reconstructed

Legislation Cited:

Evidence Act 1995 (NSW) ss 60, 66, 108, 165

Cases Cited:

Papakosmas v The Queen (1999) 164 ALJR 548; HCA 37

R v Brooks (No 3) [2017] NSWSC 261

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Regina (Crown)
Jessie 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

Judgment

1. I have come to the conclusion that the representation made by Mr Allan to Ms Cheetham and Mr Renshaw is admissible under s 66 of the Evidence Act 1995 (NSW). In saying that, I am satisfied that it is relevant to a fact in issue in the case, being the presence of Mr Green in the near vicinity of Ms Luckwell's residence at or about the time that the Crown alleges she was murdered.

2. In forming that view I have borne in mind that, for the purpose of questions of admissibility, I need to take the evidence at its highest. I also take into account that there are potentially significant differences between what Ms Cheetham and Mr Renshaw are expected to say about the detail of the representation on the one hand, and the evidence of Mr Allan on the other. Those are matters which more properly will inform my decision ultimately when I come to evaluate the facts. In that regard, I will bear in mind, under s 165, the caution with which a court must weigh and assess hearsay evidence, which this evidence undoubtedly is.

3. I was myself concerned about the fact that this topic was not raised with Mr Allan when he came to give evidence, but it seems clear from the authorities referred to by Hamill J in R v Brooks (No 3) [2017] NSWSC 261 at [10] and subsequent paragraphs that it is not a condition of admissibility under s 66 that the person making the representation himself or herself actually gives evidence of the representation when called. It is enough that the person has been, or will be, called to give evidence in the proceedings. As I have said, that not only flows from Hamill J's decision but also flows from two decisions of the Court of Appeal of the Supreme Court of Victoria concerning that State’s version of the Uniform Evidence Law.

4. Although most commonly this issue arises in relation to complaint by the complainant in sexual assault cases, it is clear from the language of the Act itself that it is not restricted to such matters. The cases referred to by the learned Crown Prosecutor and also Papakosmas v The Queen (1999) 164 ALJR 548; [1999] HCA 37 make it clear that the section applies to such evidence. They also make clear it has a broader operation and significantly changes the common law rule in relation to the use that could be made of such evidence. Once admitted under s 66, having regard to the provisions of s 60 of the Evidence Act, the evidence is admitted for all purposes and stands as evidence of the truth of the fact asserted in the representation.

5. I am satisfied that the representation made within a couple of days of the occurrence of the asserted fact is a matter which was fresh in the mind of Mr Allan, given the extended definition of that concept now to be found in s 66(2A).

6. So far as the alternative ground relied upon by the Crown is concerned, having reviewed the cross‑examination of Mr Allan, I am not satisfied that the conditions for admissibility under s 108(3) are satisfied. It was not suggested in cross‑examination by Mr Bouveng either expressly or by implication that Mr Allan's evidence about seeing Mr Green around David Street was a fabrication or a reconstruction. I acknowledge that on one view it could be argued that it was put to Mr Allan that his evidence about seeing Mr Green was the result of a suggestion made by the police. For instance, Mr Bouveng asked whether Mr Allan knew from police that Mr Green had been charged, whether the police showed him a photograph of Mr Green, or whether he was shown any CCTV footage of the movement of any person, all of which he denied. However, he was not really challenged about those denials and the cross‑examination, with respect, was more in the nature of an exploration of the circumstances in which the statement was made.

7. As it happened, it fell out in the cross‑examination that Mr Allan said that he had a conversation with Ms Cheetham and Mr Renshaw after he found out about the murder of Ms Luckwell. That was given as an explanation of how he came to the attention of the police as a potential witness. As I have said, given that it was not directly put that the matter was a product of suggestion by police or anyone else, I am not satisfied that the conditions of s 108(3), even by implication, are satisfied, and were it necessary, I would not have granted leave to elicit or adduce the evidence that the Crown wishes to adduce in relation to the representation under s 108.

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Decision last updated: 14 October 2021