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

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.
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.
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…

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 6)

Details

AGLC: R v Green (No 6) [2021] NSWSC 1306
Case: [2021] NSWSC 1306
Decision Date: 07 July 2021

CaseChat Overview and Summary

In the matter of R v Green, the appellant was on trial for a number of criminal offences. The respondent argued that the appellant had made certain representations during the course of the trial which were inadmissible hearsay. The High Court of Australia was called upon to decide whether the admissibility of the representations turned on the witness giving evidence of the representation and whether the questions asked in cross-examination suggested the evidence was fabricated or reconstructed.

The legal issues before the court were whether the hearsay evidence was admissible and whether the credibility of the witness had been impugned by the questions asked in cross-examination. The court held that the maker of the representation was available and had already given evidence. However, the representation was not sought to be elicited from the witness by counsel. The court held that the admissibility of the hearsay evidence did not turn on the witness giving evidence of the representation. In relation to the credibility of the witness, the court held that the questions asked in cross-examination did not implicitly suggest that the evidence was fabricated or reconstructed.

The court found that the appellant was not entitled to the exclusion of the hearsay evidence and that the questions asked in cross-examination did not impugn the credibility of the witness. The appeal was dismissed.

The court made no orders in relation to the costs of the appeal.

Orders