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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 signature on the sketches. He has also identified his own signature on the sketches as witness. He has given evidence that Mr Morgan drew the sketches and made the annotations contained on them.

6. The Crown tenders the documents under s 66(2) of the Evidence Act which applies in a criminal proceeding to a previous representation made by a person who is available to give evidence. If the person is called to give evidence the hearsay rule does not apply to the evidence of an earlier representation that is given by, inter alia:

“A person who saw, heard or otherwise perceived the representation being made if, when it was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.”

Sub-s 2(a) identifies the matters the court is to take into account in determining whether the occurrence of the asserted fact was fresh in the witness's memory. They concern the nature of the event, the age and health of the person and the period of time that has since elapsed. This provision is designed to overcome the previous decision of the High Court in Graham v The Queen (1998) 195 CLR 606 which gave a very limited meaning and operation to the expression "fresh in the memory".

7. One of the things Mr Bouveng has pointed out, perhaps in common with other witnesses in the case, is that Mr Morgan did say he had had at different times a substance abuse problem, and I am asked to infer that because of that these things cannot be said to be fresh in his memory.

8. I am satisfied that s 66 does permit evidence of a previous representation to be admitted while another, different witness is giving evidence. The fact that there may be a contradiction between those witnesses, it seems to me, does not in any way affect the question of admissibility. That question, of course, might be relevant to whether the evidence is accepted or not in due course.

9. I am satisfied that at the time Mr Morgan made the representation the occurrence of the asserted fact, that is to say his sighting of Mr Green, would have been fresh in his memory. I come to that conclusion because although the nature of that occurrence, a person crossing the road might be neither here nor there to most people, given the killing of Ms Luckwell, its notoriety in Tamworth and the shock that the evidence establishes was widespread amongst the community in South Tamworth, I am satisfied that these events would have been fresh in his memory in the relevant sense. Notwithstanding his drug abuse, he is not an old person and I think, generally speaking, had no frailty of the mind that might affect his ability of recall. The period of three months might in some ways be a longish period of time except if one has regard to the notoriety of the central facts in issue in this special hearing in the South Tamworth area and indeed in Tamworth generally. I am satisfied it was fresh in his memory.

10. That brings me to sub-s(3). I must confess it does not seem to be me to be a particular difficulty but the Crown drew it to my attention as an obstacle in his way; it certainly does limit the use a prosecutor is entitled to make of s 66(2). It is subject to a proviso, more or less in substance, that a prosecutor may only rely upon s 66(2) if the representation concerns the identity of a person, place or thing. I am satisfied that in this case the representation concerns the identity of a place. That is to say, the location of a sighting of a person who is said to be Mr Green in its context in the general locality including its proximity to the residence of Ms Luckwell.

11. In the circumstances, I am satisfied that the evidence is admissible, and I admit the two sketches of Mr Mark Morgan prepared on 20 June 2018 as Exhibit 14.

**********

Decision last updated: 14 October 2021