R v Woods; R v Hayes; R v McLachlan; R v Harding; R v Farnsworth

[2023] NSWSC 1163

Supreme Court

New South Wales

Medium Neutral Citation:

R v Woods; R v Hayes; R v McLachlan; R v Harding; R v Farnsworth [2023] NSWSC 1163

Hearing dates:

20 September 2023; 21 September 2023; 25 September 2023

Date of orders:

26 September 2023

Decision date:

26 September 2023

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

Application Granted

Catchwords:

CRIMINAL LAW — Hearsay evidence — Evidence contained in police statements — Where witness refers to statements to refresh memory — Where portions of statements read aloud — Whether evidence of previous representations read aloud pursuant to s 32(3) of the Evidence Act is hearsay — Direction warning the jury that the evidence may be unreliable — Significant forensic disadvantage caused to the accused by reason of the witness’s lack of recollection

Legislation Cited:

Evidence Act 1995 (NSW), ss 32, 32(2), 32(3), 38, 63(2), 165, 165(1)(a), 165(2), 165B

Cases Cited:

CSR Ltd v Amaca Pty Ltd [2016] VSCA 320

Debresay v The Queen [2017] VSCA 263

Category:

Procedural rulings

Parties:

Rex (Crown)
Phillip Woods (Accused)
Brenton Hayes (Accused)
Brendan McLachlan (Accused)
Jace Harding (Accused)
Brian Farnsworth (Accused)

Representation:

Counsel:
D Scully SC / K Mackenzie (Crown)
A Betts (P Woods)
S Schaudin (B Hayes)
S Pararajasingham (B McLachlan)
J Stratton SC / H Webb (J Harding)
A Radojev (B Farnsworth)

Solicitors:
Office of the Director of Public Prosecution (Crown)
AKN & Associates (P Woods)
George Sten & Co Criminal Lawyers (B Hayes)
Murphy’s Lawyers Inc. (B McLachlan)
Just Defence Lawyers (J Harding)
Barron Law (B Farnsworth)

File Number(s):

2020/00275638 (P Woods); 2020/00255573 (B Hayes); 2020/00298600 (B McLachlan); 2020/00283485 (J Harding); 2020/00314254 (B Farnsworth)

Publication restriction:

Nil

JUDGMENT

1. The accused are charged with the murder of Mr De Britt, which is alleged to have taken place on 14 January 2020. Each accused has pleaded not guilty. A jury was empanelled, and the trial commenced on 13 September 2023.

2. The Crown has called several witnesses. On 20 September 2023, the Crown called Anthony Ney. His evidence-in-chief was adduced over two days, namely 20 and 21 September 2023. He was cross-examined on 25 September 2023.

3. For the purposes of this short judgment, it is unnecessary to detail the evidence Mr Ney has given. It is contained in the transcript of the trial. It suffices to say that his evidence is an important part of the Crown case because it relates to alleged conversations and meetings that the Crown will rely upon to establish a joint criminal enterprise to kill or cause grievous bodily harm to the deceased, or alternatively, an extended joint criminal enterprise.

4. Mr Ney was a poor witness. He was unable to remember the events and conversations about which he was asked.

5. Multiple applications were made by the Crown to have the witness refresh his memory from statements that he made to police on 16 August 2020 and 17 July 2020. The applications were made pursuant to s 32 of the Evidence Act 1995 (NSW).

6. No objection was taken by the accused. I granted leave for the witness to refresh his memory from various portions of the statements, having satisfied myself that the witness would not be able to recall the facts adequately without refreshing his memory; and, the document from which he was being asked to refresh his memory was a copy of a document containing an account of events that the witness found to be accurate at the time the document was created.

7. Although the witness was allowed to refer to his statements in an attempt to refresh his memory, on almost all occasions, he remained unable to recall the events in question. When asked whether, having refreshed his memory from his statements he could remember an event, he repeatedly answered that he could not remember. His responses were often to the following effect: “I don’t recall”; “I don’t recall off my memory”; or “I believe what is in my statement is factual, but I have no memory at the moment”.

8. As a result, leave was sought, and granted, to read aloud, as part of his evidence, so much of the document that related to the particular event about which he was being asked: see s 32(3) of the Evidence Act.

9. Mr Ney gave evidence that he suffers from an anxiety disorder. He said that he has suffered from anxiety and panic attacks over the past 13 years. He also gave evidence that in recent months he has again suffered from those conditions, resulting in impaired memory.

10. I have not been provided with any medical records containing any such diagnoses. However, I am prepared to proceed upon the basis that the witness does suffer from anxiety and panic attacks. Still, it is unclear to me as to whether his complete lack of memory about relevant events and conversations is a result of a medical condition, fear, or a failure to make a genuine attempt to remember the evidence.

11. The reason for his impaired memory is not relevant to this application and I do not find it necessary to make any further comment about it. No objection was taken by the accused’s Counsel as to the procedure adopted. Leave was granted to have the witness refresh his memory from his statement on no less than 12 occasions and on no less than 19 occasions, leave was granted to have portions of the witness’s statements read out aloud. No application was made by the Crown to cross-examine the witness pursuant to s 38 of the Evidence Act.

12. The evidence of Mr Ney, upon which the Crown relies, is therefore constituted, in large part, of representations he made to police in his statements, as opposed to viva voce evidence he has given in Court based upon his recollection of the events in question.

13. The witness was cross-examined. He was unable to recall events and conversations. By way of example, he was asked about the Mitchell Highway meeting and responded that he had “no recollection…off my memory” as to what was said.

14. He repeatedly gave answers in cross-examination to the following effect: “I don’t recall”; “I don’t recall what happened”; “I don’t remember off my memory”; and “if I said it in the statement, it must be factual”.

The Application

15. Prior to cross-examination, on 21 September 2023, Mr Pararajasingham foreshadowed an application urging me to warn the jury that the evidence of Mr Ney may be unreliable and to identify the reasons that the evidence may be unreliable: see s 165(2) of the Evidence Act. The application, as summarised in writing (“MFI A” on this application) was limited to a direction of the evidence of Mr Ney in relation to the alleged meeting on the corner of Mitchell Highway and Burrendong Way (what will be referred to as “the Mitchell Highway meeting”).

16. Each accused makes a similar application. During the course of oral submissions, it has become clear that the accused make an application that the jury be warned about the unreliability of the evidence of Mr Ney more generally and not limited to the evidence relating to the Mitchell Highway meeting.

17. Briefly stated, the accused seek that a direction be given to the jury at the end of the evidence of Mr Ney, which will be repeated during summing up, warning the jury that the evidence of this witness may be unreliable and informing the jury of the matters that may cause it to be unreliable. Furthermore, a warning is sought that the jury exercise caution in determining whether to accept the evidence of Mr Ney and the weight to be given to it.

18. The accused submit that the previous representations made by Mr Ney in his statements to the police are plainly hearsay and therefore fall into one of the categories of evidence of a kind that may be unreliable: see s 165(1)(a) of the Evidence Act.

19. As to the matters which may cause the evidence to be unreliable, the accused rely upon the following:

1. it is impossible in any meaningful way to assess Mr Ney’s demeanour at the time he gave his account to police in 2020;

2. the account given by Mr Ney in his statement of 16 August 2020, was not made in a court environment, nor on oath, and thus may be potentially more susceptible to pressures which might result in a false account;

3. Mr Ney was not, and could not have been questioned contemporaneously by anyone concerned to protect the interests of the accused;

4. it is inevitable that the contents of Mr Ney’s statement of 16 August 2020, are subject to some degree of interpretation by the police officer who took the statement;

5. the inability of Mr Ney to now recall features of the intersection meeting means the account in the statement of 16 August 2020, may not be properly subject to testing through cross-examination; and

6. Mr Ney has admitted to telling untruths in his statements to police on 20 January 2020 and 17 July 2020.

20. The accused submit that the jury should be warned of the need for caution in determining whether to accept the evidence and the weight to be given to it.

21. The accused rely upon the decision in Debresay v The Queen [2017] VSCA 263 (“Debresay”), and in particular the remarks contained at [119]. In that case, AL’s hearsay account given at a medical centre was permitted to be given during the trial. The Court stated that notwithstanding that it may have been admissible, the evidence carried with it all the various limitations and deficiencies that hearsay evidence bears, including but not limited to, an inability to assess the witness’s demeanour at the time the witness gave the original account; the absence of an opportunity to test or challenge the witness contemporaneously; and the risk of a degree of interpretation by those present.

The Crown’s Position

22. The Crown’s position is that the relevant evidence is not hearsay. It is part of Mr Ney’s evidence, having been read aloud: see s 32(3) of the Evidence Act.

23. The Crown distinguishes the case of Debresay, which involved a hearsay account of a four-year-old child given to adults who, on their own accounts, had difficulty interpreting it. The appeal relied upon an unreasonable verdict ground. The remarks relied upon at [119] were part of the Court’s statement of reasons as to why, on the particular facts of that case, it entertained a reasonable doubt as to the verdict.

24. The Crown does not oppose some form of direction being given. The Crown does not object to a brief direction being given pursuant to s 165B of the Evidence Act. While the Crown’s primary position is that there is no need for such a direction to be given at the conclusion of Mr Ney’s evidence, the Crown has no objection to a brief direction being given to the jury now, suggesting that the jury should simply be directed that there is “an obvious forensic disadvantage to the accused, in not being able to test the account that the witness provided in his statements to the police because of the degree of impairment of his memory”.

25. The Crown has also helpfully pointed out that a finding that the portions of Mr Ney’s statements that were read aloud are not hearsay, does not preclude a direction to the jury pursuant to s 165 of the Evidence Act. It is important to note that s 165 does not provide an exhaustive list of the categories of evidence that may attract a warning.

Consideration

Are the Representations made by Mr Ney in his Police Statements, Hearsay?

26. Section 59 of the Evidence Act relevantly provides:

59   The hearsay rule—exclusion of hearsay evidence

(1)  Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

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

(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

…

(3)  Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

27. The representations made to police and contained in the police statements are previous representations made by Mr Ney. The representations contained in the police statements are clearly out-of-court statements and therefore, on the face of it, hearsay. In the present case, the out-of-court representations are before the jury because the procedure adopted was to have the witness refresh his memory from documents pursuant to s 32(2) of the Evidence Act. The procedure under s 32(2) simply allowed the witness to read to himself the relevant portions with a view to refreshing his memory.

28. Mr Ney’s memory was not refreshed. Instead, the witness indicated repeatedly that notwithstanding the fact that he was afforded an opportunity to read the relevant portions to himself, he had no memory of the relevant events and conversations.

29. It was only then, pursuant to s 32(3) of the Evidence Act, that leave was granted for the relevant portions to be read aloud as part of his evidence.

30. A question that arises on this application is whether the out-of-court representations that were read aloud as part of Mr Ney’s evidence are hearsay or whether, having been read aloud, are no longer hearsay representations.

31. The Crown relied upon CSR Ltd v Amaca Pty Ltd [2016] VSCA 320 (“CSR”), in support of the contention that the portions of the statements that were read aloud are not hearsay, but part of the evidence of the witness. The case related to a claim for damages by several individuals who had worked at the State Electricity Commission of Victoria (“SVEC”). The claim for damages was in respect of respiratory conditions that they alleged had been caused by exposure to asbestos released at the SVEC facilities.

32. SVEC had been supplied asbestos insulation products in Australia by James Hardie & Co Pty Ltd (“James Hardie”). The SVEC settled the claims. In the proceedings before the Court, James Hardie claimed contribution in respect of the settlement sum from two companies, CSR Ltd and Bradford Insulation Industries Pty Ltd.

33. In large part, the issues that arose on the appeal are irrelevant to the current application. However, one of the issues concerned the admissibility of the exposure histories in the medical reports. By ground 1, the appellants contended that the histories were inadmissible as evidence of the facts stated by the claimants to the medical practitioners.

34. A number of medical practitioners had provided reports which contained histories taken from the claimant. The medical practitioners had no independent recollection of matters recorded in the medical reports. At first instance, James Hardie relied on s 32(3) of the Evidence Act. CSR Ltd submitted that the evidence derived from the medical reports did not constitute first-hand hearsay for the purpose of s 63(2) of the Evidence Act, but, rather, was second-hand hearsay, or more remote hearsay.

35. The Court described the evidence of the medical practitioners about the medical histories as “reported memory”. The medical practitioners had recorded, contemporaneously, what they had been told by the claimants. It was held that there was nothing in the definition of hearsay evidence in s 59, or in s 63, that would indicate an intention to depart from the long-standing common law position that evidence reciting recorded memory is not hearsay evidence: see at [77].

36. The Court held, at [87]:

“Accordingly, the evidence given by each medical practitioner of the histories was not hearsay evidence of the histories. When the practitioner related to the Court the facts contained in the history given by the claimant, that constitute first-hand hearsay (and not more remote hearsay) as to those facts. The evidence was therefore inadmissible in each case, pursuant to s 63(2)(a) of the Evidence Act, to prove the facts stated to the medical practitioner by the claimant.”

37. A number of observations should be made by way of distinction. Firstly, although the Court was considering the application of s 32 of the Evidence Act, it was doing so in the context of civil proceedings.

38. Secondly, the subject evidence was contained in expert reports by way of histories taken from claimants.

39. Thirdly, the histories had been recorded contemporaneously.

40. Fourthly, the subject evidence was held to be first-hand hearsay and not some more remote form of hearsay.

41. In the present case, the proceedings involve criminal prosecutions of the accused for murder. Secondly, the representations contained in Mr Ney’s statements were not recorded contemporaneously. The statements were made approximately eight months or so after the relevant events.

42. Thirdly, although the evidence related to what the witness had observed or heard, as opposed to an account conveyed to him by another, it was contained in a document that was comprised of previous representations, made out-of-court. Put another way, the evidence comprised previous representations made by Mr Ney, namely previous representations made to police.

43. Section 32 is a machinery provision, or a facilitative provision, which allows for a witness to refresh his/her memory from a document. Section 32 is not concerned with admissibility of evidence. The evidence was adduced by the Crown for a hearsay purpose, namely, to prove the truth of the facts asserted. No objection was taken on behalf of the accused.

44. I am not persuaded that the procedure which allows representations made to police in police statements to be put before a jury, pursuant to s 32(3), transforms the essential nature of the evidence from hearsay representations to non-hearsay representations for the purpose of a s 165 warning.

45. Instead, the procedure allows for previous representations of the witness to be placed before the jury in circumstances where a witness has no recollection, or impaired memory about the events the subject of the representations made to police. I repeat in this case, those representations were adduced for a hearsay purpose.

46. I am satisfied therefore that s 165(1)(a) is enlivened. I am also satisfied that given the poor quality of the evidence, it is appropriate to direct the jury at this stage of the proceedings (the witness’s evidence having been concluded) as well as during the summing up.

47. For completeness, I add that s 165 does not provide an exhaustive list of the kind of evidence that may be unreliable. Even if not hearsay evidence, the portions of Mr Ney’s statements that were read aloud, may attract a warning pursuant to s 165 if I am satisfied that the evidence may be unreliable. I am comfortably of the view that a warning should be given to the jury that the evidence of Mr Ney may be unreliable. I am also satisfied Mr Ney’s lack of recall made it very difficult for the accused’s representatives to test or challenge the account he gave to the police in any meaningful way, giving rise to a significant forensic disadvantage.

48. I therefore grant the application.

Decision last updated: 10 December 2024