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R v So (No 2)

R v So (No 2)

Case [2023] NSWSC 1052 1 September 2023

Admissibility of Evidence

Hearsay

Tendency Evidence

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v So (No 2) [2023] NSWSC 1052
Hearing dates: 14 August – 31 August 2023
Date of orders: 1 September 2023
Decision date: 01 September 2023
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1)   In respect of the application by the Crown to admit certain hearsay evidence:
(a) The identified passages of hearsay evidence in the statements of Susan Carter, Annette O’Reilly, Gary Weavers and Sandra Weavers are admissible as exceptions to the hearsay rule pursuant to s 65(2)(c) of the Evidence Act 1995 (NSW), with the exception of paragraph (34) of Gary Weavers’ statement dated 19 June 2016 and paragraph (8) of Sandra Weavers’ statement dated 19 June 2016.
(2)   In respect of the amended tendency notice dated 28 August 2023:
(a)  the Crown is permitted to adduce as tendency evidence the following evidence in respect of the tendency that Robert Dickie disavowed long term, live-in domestic relationships and engaged in short term sexual encounters in lieu thereof, including (a) having short term sexual partners attend his home for a number of days; and (b) endeavouring to facilitate short term (days rather than weeks) sexual encounters with women by falsely promising long-term relationships with them:
(i)   Annette O’Reilly at paragraph (27) of her statement dated 23 June 2016;
(ii)  Gary Weavers at paragraphs (13) and [14] of his statement dated 19 June 2016;
(iii)  Sandra Weavers at paragraphs (12) and (16) of her statement dated 19 June 2016;
(iv)  Darren Dickie at page 322 of the trial transcript;
(v)  The evidence of “Tracey” concerning her dealings with Robert Dickie;
(vi) The evidence of “Diana” concerning her dealings with Robert Dickie;
(vii) The evidence of “Mandy” concerning her contact with Robert Dickie;
(viii)The account recorded by police of Robert Dickie’s explanation of his interaction with “Bronwyn” in the entry of a Computer Operated Policing System (COPS) report dated 24 April 2012; and
(ix)  The extracts of emails downloaded by police from Robert Dickie’s iPad.
(b) Direct that, pursuant to s 97 of the Evidence Act 1995 (NSW), despite an absence of reasonable notice by the Crown, the evidence is admissible for the tendency purpose.

Catchwords:
EVIDENCE – Admissibility – Hearsay –Representations made by alleged deceased – Where maker of representations “not available” – Whether representation made in circumstances that make it highly probable they were reliable
EVIDENCE – Admissibility – Tendency evidence – Late notice – Asserted tendency of alleged deceased to disavow long-term relationships, engage in short-term sexual encounters and falsely promise long-term relationships – Whether proposed evidence will have significant probative value

Legislation Cited:
Evidence Act 1995 (NSW), ss 59, 65, 66A, 97, 99, 100, 101, 192A

Cases Cited:
Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579
Dogan v R [2020] NSWCCA 151
Greenaway v R [2021] NSWCCA 253
R v Ambrosoli (2002) 55 NSWLR 603 at 616; [2002] NSWCCA 386
R v Dawson [2022] NSWSC 814
R v Singh (No 4) [2021] NSWSC 75
Sio v The…

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 So (No 2)

Details

AGLC: R v So (No 2) [2023] NSWSC 1052
Case: [2023] NSWSC 1052
Decision Date: 01 September 2023

CaseChat Overview and Summary

In the case of R v So (No 2), the respondent, the Crown, appealed a decision to exclude evidence of the deceased's representations. The deceased had been found dead in the respondent's home. The Crown alleged the respondent murdered the deceased and sought to adduce evidence of the deceased's representations to show they were not available to give evidence and to establish a tendency of the deceased to disavow long-term relationships and engage in short-term sexual encounters. The primary judge excluded the evidence, finding it was not reliable and did not have significant probative value.

The appeal raised two primary legal issues. First, whether the representations were admissible under the hearsay exception where the maker of the representations was not available to give evidence. Second, whether the representations were made in circumstances that made it highly probable that they were reliable. Additionally, the appeal questioned whether the proposed evidence would have significant probative value in relation to a tendency of the deceased to disavow long-term relationships, engage in short-term sexual encounters, and falsely promise long-term relationships.

The court found that the primary judge erred in excluding the evidence. The representations were admissible as they were made in circumstances that made it highly probable they were reliable. The court held that the primary judge incorrectly applied the test for admissibility of hearsay evidence. The representations were relevant and had significant probative value in relation to the deceased's tendency to disavow long-term relationships and engage in short-term sexual encounters. The court found that the representations had probative value beyond merely establishing the deceased's unavailability. The appeal was allowed, and the matter was remitted to the trial judge for re-assessment.

The court made orders setting aside the primary judge's decision to exclude the evidence and remitting the matter to the trial judge for re-assessment. The court held that the evidence of the deceased's representations was admissible and should be considered in determining the case.

Orders