R v Polkinghorne

[1999] NSWSC 704

Reported Decision: 108 A Crim R 189

New South Wales

Supreme Court

CITATION:

Regina v Vincent Allan POLKINGHORNE [1999] NSWSC 704 revised - 23/07/99

CURRENT JURISDICTION:

Criminal Jurisdiction

FILE NUMBER(S):

70051 of 1997

HEARING DATE(S):

12 July 1999

JUDGMENT DATE:

13 July 1999

PARTIES :

REGINA

v

VINCENT ALLAN POLKINGHORNE

JUDGMENT OF:

Levine J

COUNSEL :	G Lerve (Crown) T Molomby F Clarke (Accused)
SOLICITORS:	J Kontista (Director of Public Prosecutions) V Swain (Legal Aid Commission)
CATCHWORDS:	Admissibility of evidence - ss 65, 72 and 137 Evidence Act 1995 (NSW)
ACTS CITED:	Evidence Act 1995 (NSW)
DECISION:	See paragraph 59

DLJT: 1

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL JURISDICTION
WAGGA WAGGA

No. 70051 of 1997

JUSTICE DAVID LEVINE

TUESDAY 13 JULY 1999

REGINA v VINCENT ALLAN POLKINGHORNE

JUDGMENT (Admissibility of evidence - ss 65, 72 and 137 Evidence Act 1995 (NSW) )

1 Mr Vincent Allan Polkinghorne is to be indicted for that he, on 26 July 1996, at Lavington in the State of New South Wales, did murder Donna Maree Conibear. 2 On 12 July the indictment was presented by the learned Crown Prosecutor to the initiate the proceedings to enable the determination of a question of the admissibility of certain evidence. 3 Exhibit A as on the voir dire is a folder containing a notice under s 67 of the Evidence Act 1995 (NSW) and the statements of the relevant witnesses, together with the evidence given at committal, touching upon the material the subject of consideration. 4    An “agreed” summary of facts for the purposes of argument is as follows: 5    The deceased, Donna Maree Conibear was stabbed at about 2 am on Friday 26 July 1996 in the main bedroom of residential premises at 376 Woomera Crescent, Lavington. At the time the stab wound was inflicted the deceased was lying on her stomach in the bed under bed clothes which included a doona. The knife used to inflict the wound was left in the doona. 6    At about 2 am on 26 July 1996 the deceased attended the home of her mother, Mrs Yvonne Conibear at 380 Woomera Crescent, Lavington. Mrs Yvonne Conibear contacted Mrs Lorraine (Lainie) Dunlop who lived at 378 Woomera Crescent. Mrs Dunlop soon thereafter attended the resident of Mrs Yvonne Conibear. Mrs Lorraine Dunlop called an ambulance. At about 2.16 am on 26 July 1996 ambulance officers Petrie and Steer attended. 7    The deceased was then transported to the Albury Base Hospital were treatment, including a thoracotomy was administered. She died at approximately 3.30 am on 26 July 1996 at the hospital. 8    A post-mortem examination was conducted on 29 July 1996 by Dr Peter Bradhusrt. His finding included (a) the deceased died of a single stab wound to the back of the left chest penetrating the lower lobe of the left lung and entering into the cavity of the left ventricle of the heart; (b) the left lung collapsed; (c) there was a left haemothorax 1000ml; (d) there were no “defensive wounds or injuries”: this is consistent with the deceased lying on her stomach at the time the wound was inflicted; (e) the stab wound was consistent with having been caused by the knife left in the doona. 9    The knife which was in the doona was similar to four other knives found in the kitchen of the premises. 10    The evidence which the Crown seeks to have admitted is a statement by the deceased, “Mum, Vin stabbed me” made in response to an inquiry “What’s the matter mate?” by the deceased’s mother upon the deceased coming to her house. 11    There are two other statements of which evidence can be given by Mr Petrie, ambulance officer, which were made by the deceased subsequent in time to the representation made by her to her mother. Those statements were to the effect of an answer “I don’t know” when asked “What happened?” Further, Mr Petrie can give evidence as to an observation he made of the deceased in the ambulance in response to the question to the effect “Who did this?” that she gave no oral reply but instead looked blankly out of the window of the ambulance. 12 The Crown relies upon s 65(2)(b) and (c) of the Evidence Act 1995 (NSW) and s 72 of the same legislation. 13 Section 65(2)(b) and (c) is as follows:

“(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard, or otherwise perceived the representation being made, if the representation was:
…
(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c) made in circumstances that make it highly probable that the representation is reliable, …”

14 Section 72 of the Evidence Act 1995 (NSW) (headed “Exception: Contemporaneous Statements About a Person’s Health, etc.”), is as follows:

“72. The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensation, intention, knowledge or state of mind”.

15    I am informed and accept that there is no authority directly on point in respect of this precise kind of evidence and its admissibility under the Evidence Act 1995 (NSW). 16    Accordingly, the approach was adopted by considering the general law commencing with the decision of the High Court in Walton v The Queen (1987-1988) 166 CLR 283 holding to the effect that evidence of a relevant out of Court statement is admissible to prove the maker’s knowledge or state of mind in a case where the knowledge or state is itself a fact in issue or is provable (as against the party against whom the evidence is tendered) as a fact relevant to a fact in issue: see Wilson, Gaudron & Toohey JJ especially at 300-301. 17 Section 65(2)(b), it is submitted, is probably the closest test in the Evidence Act 1995 (NSW) to that which is referred to by Lord Wilberforce in Ratten v The Queen [1972] AC 378 at 388F to 389E, where his Lordship said:

“The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships’ opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regard statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event to that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must in principle be true of statements made before the event. The test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received. The expression ‘res gestae’ may conveniently sum up these criteria, but the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges’ rulings”.

18    This component of Lord Wilberforce’s speech which constituted the Advice of the Privy Council, was considered by Barwick CJ in Vocisano v Vocisano (1973-1974) 130 CLR 267 at 272-3:

“The question of whether statements form part of a res gestae is fraught with difficulty at any time. In the present case, the learned trial judge relied upon the views expressed by the Privy council when giving its advice in Ratten v The Queen … A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might well be reliable:” but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible. It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility. In Ratten’s Case , Lord Wilberforce seems to have regarded the relevant occurrence as the ‘drama’ which began when it may be supposed a threat to kill his wife was made by the appellant in that case and which ended with her death. So regarded, the telephone call was necessarily involved in the occurrence and the deceased’s statement to the telephonist clearly contemporaneously identified with it”

19    The learned Crown also referred me to the transcript of argument before the High Court in Papakosmas v The Queen S139/98 (5 March 1999) which has yet to be decided. At pages 16 and 17 there is an indication that the old decision of Reg v Bedingfield (1879) 14 Cox’s Criminal Cases 341 had “bitten the dust”. It seems that Gleeson CJ was apparently in agreement with that proposition as to the curious authority of that decision of Cockburn CJ excluding both as a dying declaration and as part of the res gestae the well known statement of the deceased “See what Harry has done!” If the exchange referred to in the transcript evolves into an authoritative statement of the High Court in judgment in Papakosmas then the law of evidence will be well served. 20 Thus, it is submitted for the Crown for the purposes of s 65(2)(b) that there is no material available here which could lead to any other conclusion than that it was unlikely that the representation made by the deceased to her mother was a fabrication. It was a spontaneous remark in the sense that it happened within a very short time of the stabbing itself - within minutes - that is, shortly after the “drama” referred to by Lord Wilberforce leading up to the climax, had commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or what actually happened. 21 For the Crown reliance is also placed on s 65(2)(c) and an apparent concession was made that that was more “problematic” for the Crown given the statements of testimony that could be given by the ambulance officers. This goes to the question of reliability. 22    It is to be borne in mind that I am concerned with the admissibility of the statement to the mother and whether it was made in circumstances that make it “highly probable that the representation is reliable”. What the Crown seems to be concerned about is the two later statements being available to affect the question of the probability of reliability. However the statements made to the ambulance officers are separate representations and must themselves be subject to the admissibility requirements of s 65(2). 23 If the statement twice made to the ambulance officer subsequent to the critical statement made to the mother are admissible, they may arguably go to the circumstances of the making by the deceased of the statement to the mother. This proposition which I sought to articulate during the course of submissions does not appear to me to have been developed. For the purposes of determining the admissibility of the statement made by the deceased to the mother nothing in the “circumstances” of her making it to her mother arguably derogates from its reliability. Equally arguably the circumstances in which the subsequent representations were made to the ambulance officers could make it highly probable that those representations were unreliable by reason of, applying one’s common sense in the absence of expert evidence, the deterioration in the physical condition of the deceased. 24 For the moment therefore I am inclined to the view that if this material is admissible under s 65 it is admissible under s 65(2)(b) and (c) without recourse to the determination of the admissibility of the quite separate representations made by the deceased to another witness, namely the ambulance officer. 25 It is also argued for the Crown, as I have said, that the statement would be admissible hearsay by reason of it being contemporaneous representation for the purposes of s 72. It is certainly clear that any separate representations made by the deceased to the ambulance officer verbally (as opposed to the physical observation of her response to a question), would not be admissible under s 72 because the response does not fall within any of the matters therein referred to. I must say I have great difficulty with s 72 notwithstanding the “contemporaneity” component in the sense that on one reading of it arguably in respect to contemporaneous statements it renders the whole of the hearsay exclusionary rules irrelevant in the Evidence Act. The section makes sense, in my view, up to the point where it deals with “health, feelings and sensations”. It is the inclusion of the words “intention, knowledge, or state of mind” that give rise to problems. As Mr Odgers has remarked in his learned text does “knowledge” and “state of mind” include “belief” or “memory”? No authority was cited to me in the course of argument on this very curious and vexing question. This reinforces the view that I have that the determination will depend upon the operation of s 65(2)(b) and (c). It was further argued on behalf of the Crown that in the event that I find the evidence admissible pursuant to s 65 the tests for the exercise of the discretions in Part 3.11 of the Act (s 135-137) will have been satisfied. 26 Mr Molomby for the accused approached the question by examining s 65(2)(c) first. He argued that what the drafters of the legislation had in mind have not been achieved by the wording of the relevant sections. If what was sought to be achieved was the coming to a conclusion about the high probability of reliability, the wrong set of “circumstances” have been addressed. As I understand the submission it is the circumstances of the relating of the event perceived or observed rather than the event itself which are relied upon to determine reliability. In other words, the test of reliability is confined to the circumstances of the narration and thus, the reliability of the representation, cannot “logically” be established only by the circumstances of the narration. It is argued that it just cannot logically be done, that is, one establishes how reliable what someone is saying about something that happened by looking only at the transaction between the narrator and the person to whom the account is given. 27    It is submitted that it would be impossible for the Court in this case to determine the reliability of the narration from the circumstances in which it was made to the mother. What was said by Mr Molomby was “it would be a totally irrational proposition to assert that the reliability of the original observation could be established by the circumstances in which it was narrated” (T13.10). 28    In the context of Mr Molomby’s own submissions the extracted part really is contradictory. It is fundamental to Mr Molomby’s submission that the legislature has enacted the “wrong test” by referring to the circumstances of the narration rather the circumstances of the original observation of the event being narrated. It is not the reliability of the observation of the actual circumstances that is being tested, even on Mr Molomby’s own argument, it is the reliability of the narration of the observations as to what happened. 29    Be all that as it may, whilst it may well be arguable along the lines that the legislature has chosen the “wrong test”, the test still remains that contained in the wording of the section itself which refers to the circumstances of the narration. 30    It seems to me that what the legislature has done is to focus upon the reliability of the narration of the events to determine the admissibility of the evidence of that narration as going to the proof of the events themselves. The question of admissibility is one thing, the question of ultimate proof is another, of course. 31    In this regard I must say I agree with some statements made by Sperling J in Regina v Mankotia (unreported, 27 July 1998) at 5 and 6, to which I will return shortly. 32    I am unable to accept the submission for the accused made by Mr Molomby. Indeed, when one reads what Lord Wilberforce said in Ratten at 389 there is not the slightest suggestion that the test there expounded by him involves an examination by the event as opposed to the examination of the narration of it. 33 In relation to s 65(2)(b), the same argument is advanced in relation to that component of the paragraph of the subsection that refers to “circumstances that make it unlikely that the representation is a fabrication” - that is, one must look at the circumstances of the event being narrated rather than the narration itself. With that I have dealt. 34    The second component of Mr Molomby’s submission is a very interesting one in relation to this subsection which opens with the words “made when or shortly after the asserted fact occurred”. “Asserted fact” is defined in s 59 which provides:

“(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by their representation.

(2) Such a fact is in this Part referred to as an asserted fact ”.

35    By reason of that definition, it is submitted, there is requirement that consideration should be given to whether the “asserted fact” occurred at all. How else can it be determined, it is argued, whether the representation was made “shortly after” the asserted fact occurred or how could it be determined “when” the representation was made without a determination of when and therefore, whether the asserted fact, indeed as a matter of fact, took place? 36    It is submitted that if the legislature had intended to focus upon the question of timing in relation to the asserted fact the relevant subparagraph would read as follows, “made when or shortly after the asserted fact is asserted to have occurred” (emphasis added). 37    I think there are two available responses to the propositions advanced in this context by Mr Molomby. First are the terms of s 59(1) which speaks of a previous representation not being admissible to prove the existence of a fact that the person intended to assert by the representation. That section, in my view, is concerned with the assertion as to a fact and the word “assertion” used in that exclusionary rule provision (to preclude the proof of the existence of the fact) must, to make any sense at all for the very existence of the rule, be a reference to what a person was saying that a fact was, as distinct from direct evidence of that fact. 38    The second basis is the sheer impracticality of the proposition advanced in terms of the other sections of the Act whether relating to exceptions in civil proceedings (ss 63 and 64), or indeed, to the restriction in subsection (2) as to “first hand hearsay”. If a question arises in relation to s 65(2) as to whether a person had personal knowledge of the asserted fact, is it to be taken that the asserted fact would have to be independently proved to determine whether or not the person has personal knowledge of it or that that knowledge might reasonably be supposed to have been based on something that the person saw, heard or otherwise perceived (other than a previous representation made by another person about the fact)? In my view, it is not to be so taken. 39 In Mankotia Sperling J said (at 5-6):

“S65(2)(b) prescribes two conditions for its operation. First, the representation must have been made contemporaneously with the asserted fact (that is, the fact intended to be asserted by the representation: see s 59(1)) or shortly thereafter.
The phrase ‘shortly after’ is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to be taken into account but - as in the case of normative judgments generally - it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase ‘shortly after’ must be the actual time that has elapsed and whether that fits the ordinary usage of the expression ‘shortly after’ in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind.
The second condition prescribed by s 65(2)(b) is that the representation was made in circumstances that make it unlikely that the representation was a fabrication. The test is not one of reliability at large. It is a narrower test. First it is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial. Secondly, it is not unlikelihood at large which is in question, but unlikelihood arising from the circumstances.
I would construe ‘circumstances’ to mean the circumstances in which the representation was made, its factual setting at the time it was made . That construction has the effect of excluding from consideration, for the purposes of s 65(2)(b), events subsequent to the representation being made and other representations made by the same person on other occasions, notwithstanding that such considerations might logically fortify the unlikelihood of concoction or (in the case of inconsistent representations) have the opposite effect. The same point arises in relation to s 65(2)(c) ” (emphasis added).

40 I respectfully agree with what his Honour there said in respect of the essential submissions underpinning the defence position in relation to the operation of the two sub-paragraphs of s 65(2). 41 A further submission made by Mr Molomby in relation to s 65(2)(b) is as to the word “fabrication”. To my understanding the word “fabrication” in ordinary English means something that is “made up”. Technically it means, of course, something constructed or put together or simply made. What Mr Molomby has submitted, and it is again a very interesting submission, is that the sub-section does not take into account a “fabrication” that is “innocent”. 42    In this regard Mr Molomby contends that there is some guidance in the Act that “fabrication” can include an innocent fabrication namely, s 108(3). If a “fabrication” is to be understood in s 65(2)(b) as inclusive of an innocent fabrication, then that creates what Mr Molomby describes as a “false construct of evidence” which I understand to mean the quality of evidence to which the intended purposes of s 65 could not conceivably relate to make it admissible. 43 Section 108(3) is concerned with an exception to the Credibility Rule (s 102) and with “re-establishing credibility”. Section 108(3)(b) provides that the credibility rule does not apply to evidence of a prior consistent statement of a witness if “(b) it is or will be suggested, (either expressly or by implication) that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion” (emphasis added). 44 This is an ingenious, and I say that with respect, and a very interesting argument. Section 108(3)(b) it must however be borne in mind is concerned with the credibility rule. Section 65(2) is concerned with the admissibility of evidence to prove a fact. Section 108(3)(b) is triggered by evidence having been given and thus, of course, having been admitted and the testing of its credibility by that mechanism which I construe s 108(3)(b) solely to be directed. 45 Upon my reading of s 65(2)(b) “fabrication” has that ordinary meaning that founds such statements of principle as are set out in Ratten and Walton. 46    It was also submitted for the accused in the context of the proof of the asserted fact that the problem would not be so acute, if it exists at all, if there was independent evidence of it. That may be so. It is the second alternative namely, the requirement of a conduct of a voir dire which would involve the hearing of the whole of the Crown case which was reluctantly offered as the only basis on which to resolve the issues raised by Mr Molomby’s propositions. Although I have rejected those propositions, the notion of conducting a “voir dire” has itself not been without mention. In Ratten at 391 Wilberforce LJ said as follows:

“Before applying it to the facts of the present case, there is one other matter to be considered, namely the nature of the proof required to establish the involvement of the speaker in the pressure of the drama, or the concatenation of events leading up to the crisis. On principle it would not appear right that that necessary association should be shown only by the statement itself, otherwise the statement would be lifting itself into the area of admissibility. There is little authority on this point. In Reg v Taylor [1961(3)] S.A.L.R. 616 where witnesses said they had heard scuffles and thuds during which the deceased cried out “John, please don’t hit me any more, you will kill me,” Fannin J said that it would be unrealistic to require the examination of the question (sc. of close relationship) without reference to the terms of the statement sought to be proved. ‘Often the only evidence as to how near in time the making of the statement was to the act it relates to, and the actual relationship between the two, will be contained in the statement itself,’ (p 619). Facts differ so greatly that it is difficult to imagine a case where there is no evidence at all of connection between the statement and principal event other than the statement itself, but whether this is sufficiently shown must be a matter for the trial judge. Their Lordships would be disposed to agree that, amongst other things, he make take the statement itself into account”.

47    And in Mankotia at 6 Sperling J said:

“The argument has given rise to no serious difficulties in the present case. But what if it were seriously in dispute as to whether the accused killed the deceased? There would have to be a trial within a trial. And, in the present case, the same approach would entitle the Crown to prove that the killing was done with an intention to kill, and without provocation for that matter, all of which would be logically relevant to whether a prior representation that the accused had threatened to kill the deceased was unlikely to be a fabrication or was highly probable to be reliable. The Crown would be entitled to call virtually the whole of its case on the voir dire and the accused would be entitled not only to test it but to answer it by evidence on the voir dire. This cannot have been intended”.

48 With respect I agree with what is both explicit and implicit in what Sperling J said as to the non-availability of such a course on the determination of an issue such as this. 49 Thus, I am not persuaded that s 65(2)(b) or (c) operates to exclude the proposed testimony from the deceased’s mother of what her daughter said to her. Nothing that has been placed before me persuades me that when the statement was made it was likely that the representation was a fabrication (it being made shortly after the asserted fact occurred as I have understood the expression “asserted fact”), or that it is highly probable that the representation was unreliable. 50 If I determined that the evidence is admissible, it is urged upon me that in the exercise of my discretion I should exclude it on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused (s 137). 51 It is to be noted that s 137 speaks of “the danger of unfair prejudice”. Unfair prejudice to the party against whom the evidence is tendered is not established by the mere fact that the evidence has only slight probative value: nor is it established because it may (quite properly) reduce the effect of that party’s case. There must be shown to be a danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issue in the case: R v Lockyer (1997) 91 A Crim R 356; Pfennig v The Queen (1975) 182 CLR 461. The onus remains on the accused under s 137 to persuade the trial judge that the danger of unfair prejudice from the evidence outweighs its probative value. The section provides that the evidence must be excluded once the judge is persuaded of that fact: Regina v Lock (1997) 91 A Crim R 356 at 364 per Hunt CJ at CL. 52 The probative value of the evidence ruled to be admissible as an exception to the hearsay, Mr Molomby argues, is dramatically affected by the responses to the ambulance officers hitherto referred to, they having the quality of seriously undermining the effect of the original utterance. The realistic approach, it is said, is that there is someone in the house in the circumstances namely the victim who was on her face in bed covered up and is stabbed. There is only one other adult in that house normally, the accused. She is in a state of evident distress for obvious reasons and, it is said, “jumps to a conclusion” that the accused must have stabbed her, coming to that conclusion after some time in the house of her mother when being cared for. Her responses to the ambulance officer to the effect “I don’t know”, could represent very plausibly and conceivably the true position in the circumstances: namely, she had made no observation but had reached a conclusion. That view of the admissible testimony impacts upon its probative effect. Trite thought it is to say, of course, the actual witness is not available to be cross-examined particularly on what is said to be the critical aspect as to whether her utterance represents a statement of an observation she made or a conclusion at which she arrived. Save for the statement made to the mother there is no other “narration”, which factor is also said to be suggestive of a conclusion rather than an observation. Other matters include, of course, the fact that there will be shown to be no other wound apart from the fatal one, the inference being available that the victim did not act defensively and therefore did not see that the stabbing was coming. The inference is also available that she awoke in panic and distress proffering confused thoughts. The very emotional circumstances attending what befell the deceased and the fact that statement was made to her mother could contribute to a statement in these circumstances being given greater weight than it deserves: that, I understand, to be a reference to the danger that the tribunal of fact will use the evidence on a basis logically unconnected with issues. The evidence ruled to be admissible is, of course, logically connected with the fundamental issue in the case, namely whether the Crown proves beyond reasonable doubt that the accused stabbed the deceased. 53    Other matters to which Mr Molomby referred was the apparent existence of evidence that a motor vehicle was observed by the witness Mrs Dunlop leaving the location at the time “all this fuss was taking place”. That is, I am to be taken to understand, the time the victim was going to her mother’s house. The accused does not drive a car. He has an impairment to his eye sight that makes him see in focus, as-it-were, things only about two inches in front of his face. 54    These matters, of course, may ultimately have some effect upon evidence which presently can be characterised as of probative value in the principle issue in the trial as well as being, by its very nature, prejudicial. 55    Of course the utterer of the statement is unavailable to be cross-examined. The recipient of it is. The recipient of the statements made to the ambulance officers are available to be cross-examined. The representation directly involves the accused and he, of course, can give sworn evidence in relation to it and to the matter as a whole. He is able to place his own version before the jury (cf. Regina v Brett John Dean (Dunford, J, unreported, 23 March 1997) at 3; Regina v George Daniel Morish (Hidden J, unreported, 4 October 1996) at 6). 56 Thus I am not persuaded to exercise my discretion under s 137, not being persuaded that, notwithstanding the prejudicial effect of the evidence admissible as an exception to the hearsay rule, that there is a danger of unfair prejudice. It is to be borne in mind also that the jury can and no doubt probably will receive appropriate directions. 57 There remains what I must confess to finding as curious a factual matter that arose during the course of submissions. This is constituted by the material in Exhibit 1 which is a statement dated 6 September 1997 by Dr Neil Blair of the Albury Base Hospital. It refers to what appears to be the fact that at about the time or shortly after the incident the accused was involved in a motor vehicle accident, that is, he was apparently, in the early hours of 26 July 1996, hit by a truck sustaining a close head injury. 58 I do not see the relevance of the material relating to these facts, if they be facts, to the question of the admissibility of the subject testimony. These facts might have other relevance in the trial generally but for present purposes I do not understand them to be pertinent. 59 Accordingly, I rule that evidence of the statement made by the deceased to her mother will be admitted.

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Last Modified: 06/30/2000