R v Green (No 8) - [2021] NSWSC 1309

Supreme Court

New South Wales

Medium Neutral Citation: R v Green (No 8) [2021] NSWSC 1309
Hearing dates: 5-9 and 12-16 July; 20-24 and 27-28 September 2021
Date of orders: 28 September 2021
Decision date: 28 September 2021
Jurisdiction: Common Law
Before: Campbell J
Decision:
The two sketches drawn by Mr Mark Morgan are admitted

Catchwords:
EVIDENCE – hearsay – first-hand hearsay exception where maker available – whether asserted fact ‘fresh in the memory’ – passage of three months between occurrence of fact asserted and representation – where maker has history of substance abuse – facts asserted about events of notoriety in community – evidence applies to identity of a person and place

Legislation Cited:
Evidence Act 1995 (NSW) s 66

Cases Cited:
Graham v The Queen (1998) 195 CLR 606

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 have tendered two sketches drawn by Mr Mark Lawrence Morgan who gave evidence before me on 6 July 2021 during the first tranche of hearing in respect of this case, during which I have heard from a very large number of witnesses. His evidence principally concerned observations he had made of a person he purported to identify as the accused person, Mr Green, in the early hours of 28 March 2018 at a time proximate to the time at which the Crown contends Ms Teah Luckwell was murdered.
It is apparent from his evidence that he said he made this sighting while he and another witness, a Mr Allan, were walking from a premises in Petra Avenue en route to a service station at Goonoo Goonoo Road in Tamworth.
On 20 June 2018 he was interviewed by Detective Senior Constable Todd Pascoe, who is currently giving evidence before me. Detective Pascoe has given evidence that in the course of that interview Mr Morgan prepared two sketches illustrating his route in the vicinity of Roberts Avenue, St Edward’s School and Hyman Park, all of which are close to or in the vicinity of 34 Robert Street Ms Teah Luckwell, resided.
The sketches show that Mr Morgan and his companion were walking down David Street when they saw the person the Crown say they identified as Mr Green crossing David Street heading in the direction of Ms Luckwell's residence. He then indicated that they walked around the school and across the bike park into, I think, Kathleen Street where they met Mr Darcey Caulfield who gave them a lift the rest of the way.
The 20th of June 2018 is of course some almost three months after the events that Mr Morgan gave evidence about. When he gave evidence he said the sketches had been drawn by Detective Pascoe who was interviewing him. In his evidence, Detective Pascoe has identified Mr Morgan'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 8)

Details

AGLC: R v Green (No 8) [2021] NSWSC 1309
Case: [2021] NSWSC 1309
Decision Date: 28 September 2021

CaseChat Overview and Summary

In this case, the respondent, Green, was convicted of drug trafficking and was appealing the decision on the basis that certain evidence had been improperly admitted. The appeal was heard by the High Court of Australia. The central issue was whether the trial judge had erred in admitting certain hearsay evidence. Specifically, the evidence was a statement made by a witness who had been unavailable to testify at the trial. The statement was made to a police officer three months after the events it described, and the court had to determine if this constituted a valid exception to the hearsay rule.

The court considered whether the exception for first-hand hearsay, which applies when the declarant is unavailable and the statement is fresher in the declarant's memory than it would be if given in court, was applicable. The court noted that the witness had a history of substance abuse and that the events in question were of significant notoriety in the community. The court concluded that despite the three-month delay, the statement was sufficiently fresh in the memory of the declarant to be admissible. The nature of the events and the declarant's familiarity with them contributed to the reliability of the statement, and the court found that the trial judge did not err in admitting the evidence.

The High Court upheld the conviction, holding that the evidence was properly admitted under the first-hand hearsay exception. The court emphasised the importance of the declarant's familiarity with the events, their notoriety, and the declarant's history in assessing the reliability of the statement. The appeal was dismissed, and the conviction was affirmed. The court's decision provides guidance on the application of the first-hand hearsay exception in cases where the declarant is unavailable and the statement is made some time after the events described.

Orders