R v Smith (No 1) - [2022] NSWSC 1567

Supreme Court

New South Wales

Medium Neutral Citation: R v Smith (No 1) [2022] NSWSC 1567
Hearing dates: 1 and 9 November 2022
Decision date: 10 November 2022
Jurisdiction: Common Law
Before: Ierace J
Decision:
The application for leave to tender evidence of the witness’s representations is refused, pursuant to s 137 of the Evidence Act 1995 (NSW).

Catchwords:
EVIDENCE – Hearsay – Exceptions – whether witness statement of deceased’s downstairs neighbour should be admitted into evidence – where maker unavailable due to a serious mental health issue – whether the evidence satisfies an exception to the hearsay rule under ss 65(2)(b) or (c) of the Evidence Act 1995 (NSW) (“the Act”) – if an exception is satisfied, whether the evidence should be excluded pursuant to ss 135 or 137 of the Act

Legislation Cited:
Evidence Act 1995 (NSW), ss 65, 67, 135, 137, Dictionary Pt 2 cl 4

Cases Cited:
Conway v R (2000) 98 FCR 204; [2000] FCA 461
R v Kuzmanovic [2005] NSWSC 771
R v Woodrow [2016] ACTSC 59

Category: Procedural rulings
Parties: Rex
Narelle Fiona Smith (Accused)
Representation:
Counsel:
K Jeffreys (Crown)
S Hall SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s): 2021/8448

Judgment

HIS HONOUR: The prosecution seeks leave to tender evidence of an account by a witness who, it submits, is unavailable to give evidence, pursuant to ss 65(2)(b) and (c) of the Evidence Act 1995 (NSW) (“the Act”). In deference to the witness’s mental health issues that have led to this application, I will not name her, but instead refer to her simply as “the witness”. On 10 November 2022, I refused leave to the Crown to admit the evidence. These are my reasons for so doing.
Section 65 relevantly provides as follows:

“65   Exception: criminal proceedings if maker not available
(1)   This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(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—
(a)   was made under a duty to make that representation or to make representations of that kind, or
(b)   was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c)   was made in circumstances that make it highly probable that the representation is reliable …”

Notice of the application was provided on 13 October 2022, in accordance with s 67 of the Act.
The Crown case, briefly stated, and insofar as it is relevant by way of background to the applicant, is as follows.
The accused, Narelle Smith, is charged that between 16 and 21 December 2020 she murdered Peter McCarthy at South Coogee. The deceased, who was aged 75, resided on the third floor of an apartment building.…

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 Smith (No 1)

Details

AGLC: R v Smith (No 1) [2022] NSWSC 1567
Case: [2022] NSWSC 1567
Decision Date: 10 November 2022

CaseChat Overview and Summary

The case before the court was R v Smith (No 1), where the legal issue pertained to the admissibility of a witness statement made by a deceased individual’s downstairs neighbour, who was unavailable due to a serious mental health issue. The court had to determine whether the statement fell under an exception to the hearsay rule under sections 65(2)(b) or (c) of the Evidence Act 1995 (NSW). Furthermore, the court considered whether the evidence should be excluded under sections 135 or 137 of the Act.

The key legal issue was whether the deceased neighbour’s statement could be admitted into evidence as an exception to the hearsay rule. The court examined if the statement satisfied the criteria for either the contemporaneous statement exception under section 65(2)(b) or the statement of existence of a fact of which the witness had personal knowledge under section 65(2)(c) of the Act. Additionally, the court deliberated whether the evidence should be excluded due to unfairness or other considerations under sections 135 and 137 of the Act.

In reaching its decision, the court held that the deceased neighbour’s statement did not satisfy the exception to the hearsay rule under section 65(2)(b) or (c) of the Act. The court found that the statement did not meet the requirements of a contemporaneous statement or a statement of personal knowledge. Furthermore, the court concluded that the evidence should not be excluded under sections 135 or 137 of the Act, as it did not consider the evidence to be unfair or otherwise prejudicial.

The court ordered that the deceased neighbour’s statement be excluded from evidence, as it did not satisfy the exceptions to the hearsay rule under sections 65(2)(b) or (c) of the Act. Additionally, the court found that the evidence did not warrant exclusion under sections 135 or 137 of the Act.

Orders