Regina v Dean Anthony Privett and Michael Privett

[1999] NSWSC 1075

CITATION:	Regina v Dean Anthony Privett and Michael Privett [1999] NSWSC 1075
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	70081/98; 70014/97
HEARING DATE(S):	21 July 1999
JUDGMENT DATE:	3 August 1999
PARTIES :	Regina v Dean Anthony Privett Michael Privett
JUDGMENT OF:	Badgery-Parker AJ at 1

COUNSEL :	Cr: Mr P Conlon D (Dean): Mr P Young D (Michael): Mr P Bodor QC
SOLICITORS:	Cr: Crown Solicitors Office, Wollongong D (Dean): Legal Aid Commission of NSW D (Michael): Brezniak Neil-Smith & Co, Sydney
CATCHWORDS:	EVIDENCE - Admissibility - Hearsay - Exception: criminal proceedings where maker not available - Statements made by deceased to friend - Whether based on what he saw, heard or otherwise perceived - Whether first hand hearsay or more remote.
ACTS CITED:	Evidence Act 1995
CASES CITED:	Regina v Carr (25 August 1989, NSW Court of Criminal Appeal, unreported)
DECISION:	Evidence rejected

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BADGERY-PARKER AJ

Tuesday, 3 August 1999

No: 70081/98 REGINA v Dean Anthony PRIVETT
No: 70014/97 REGINA v Michael PRIVETT

JUDGMENT

1    HIS HONOUR: The Crown sought to adduce evidence from several sources to establish a number of matters said to lay the foundation for a finding by the jury that each of the accused had a particular motive to kill Dr Peter Rowland. The evidence in question comprised the following:

(a) Evidence of Jeanette Mary Baldwin, a friend of the deceased, of a conversation with him in February 1996 in which the deceased told her, “My life is in danger, there are two brothers that are after me”. Ms Baldwin asked why, and she says in her statement:

“I can’t remember his exact now, but it was either, ‘They think I made their brother gay’ or ‘They think I gave their brother AIDS.”


(b) Evidence of Alena Privett, a sister of the two accused, that she and they have another brother who is known by the family to be homosexual. (The Crown submits that that evidence of Alena Privett sufficiently shows that the two accused were the “two brothers” referred to by Dr Rowland in his conversation with Ms Baldwin.)

(c) Evidence that between 1982 and 1984 the accused Michael Privett was detained at Quamby House, a juvenile justice institution in the Australian Capital Territory, and that he was there three times treated by Dr Rowland who held an appointment as a visiting medical officer to that institution.

2    The Crown submits that these three pieces of evidence (to all of which counsel for both accused have taken objection) are to be looked at along with certain other evidence already in without objection, and that, taken together, the whole body of evidence has powerful probative value as evidence of motive, which is not outweighed by any danger of unfair prejudice to the accused. That other evidence to which the Crown points as evidence already before the jury without objection comprises the following evidence admitted against Michael Privett only:

(a) questions and answers 26 and 27 in exhibit ‘S’, the recording of an interview between that accused and police officers on 30 June 1996, as follows:

“Q26: You said to me, ‘I shot him, I done it, I pulled the trigger’?
A: That’s it.
Q27: And I said to you, ‘Why?’ And you said, ‘He was a fag.’ I said, ‘Can you tell me who was with you?’
A: Yes.”

(b) questions and answers 333 to 340 in the same interview as follows:

“Q333: Right. Now, you also said earlier that Dr Peter Rowland was a fag?
A: Yes.
Q334: By that do you mean homosexual?
A: Yes.
Q335: And how are you aware of that?
A: I was told that in Yass.
Q336: Who told you that?
A: I can’t remember, pub talk.
Q337: Just pub talk.
A: Yeah.
Q338: Have you ever met Dr Rowland?
A: No.
Q339: Has Dr Rowland ever done anything to you?
A: No.”

together with the following evidence admitted against Dean Privett only, namely evidence of Mr French that Dean Privett had met Dr Rowland, having been introduced to him by Mr French (who was at the time Dean Privett’s employer) on a day when Dean Privett was to work at the doctor’s property (which evidence of course also carries with it that Dean Privett knew where Dr Rowland’s property was located).

3    The starting point for the Crown’s argument that the evidence in issue is admissible is the proposition that always in murder evidence of motive is admissible: per Gleeson CJ in Regina v Carr (25 August 1989, NSW Court of Criminal Appeal, unreported). That I think is unarguable, but the Chief Justice had no occasion in that judgment to explain to what issue or issues the presence of motive on the part of the accused might go. It may in fact go to two different issues: first, as circumstantial evidence forming part of the case that the murderer was the accused, and not some other person; and second, as constituting one of the circumstances from which, all relevant circumstances being considered together, the jury might draw an inference that the accused’s act causing death was done with intention to kill (or to do grievous bodily harm). Accordingly, it being open to the Crown to prove matters capable of showing a motive, it is open to the Crown to establish that the accused believed (whether correctly or not would not matter) that the victim had harmed the accuseds’ brother, by causing him to adopt a homosexual lifestyle or by causing him to become infected with AIDS; and that on that account the accused bore a grudge against the victim.

4    It may be observed in passing that the evidence already in without objection, without reference at all to this additional material, affords some evidence from which the jury will be entitled to conclude that the accused did have a motive stemming from a measure of homophobia as revealed by his answers to questions 26 and 27 and possibly also by his answers to question 333 to 340.

5    The Crown submits that Ms Baldwin’s evidence shows that the victim was in fear of “two brothers” and that the evidence of Alena would satisfy the jury that it was highly probable that the two accused were the two brothers in question. It is submitted that Ms Baldwin’s evidence shows that the accused had a grudge against Dr Rowland because of the plight of their brother and their belief that the doctor was responsible. Hence it is argued that Ms Baldwin’s evidence is of great probative value; and it was submitted, its admission would not cause any impermissible prejudice.

6    The ground of objection as outlined by Mr Bodor (his submissions in this regard were adopted by Mr Young) relates particularly to two matters and is based on the relevant provisions of the Evidence Act 1995. Analysing the situation in terms of the unwieldy language of the Act, Dr Rowland’s statement to Ms Baldwin is a “previous representation” of which the doctor was the “maker”; and the “fact asserted” by Dr Rowland in that “representation” was that his life was in danger because two brothers were after him. Alternatively, it might be said that the “fact asserted” was Dr Rowland’s belief to the like effect, but that would not be a relevant fact. The only relevant fact asserted is the substance of what Dr Rowland was stating as his belief. The scheme of the Act is that by s59(1), there is established the “hearsay rule”, namely “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 the representation”. Then, the Act specifies certain exceptions to the hearsay rule in ss60 and 61 and, in Division 2 of the Act (s62 to 68), certain other exceptions which apply in relation to “first-hand” hearsay. Section 65 applies particularly in criminal proceedings if the maker of the previous representation is not available to give evidence (as is, of course, beyond dispute in the case here). Section 65(2) provides:

“65(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:
…
(c) made in circumstances that make it highly probable that the representation is reliable.”

7    Section 62 provides as follows:

“62(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or 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.”

8    The argument on behalf of the accused is, firstly that it is not possible to say that Dr Rowland’s knowledge of the asserted fact “was, or might reasonably be supposed to have been, based on something that [Dr Rowland] saw, heard or otherwise perceived, other than a previous representation made by another person about the fact”. Nothing in Dr Rowland’s conversation with Ms Baldwin indicates the source of his belief (or knowledge) that his life was in danger because two brothers were out to get him. But it might have been thought that if he had directly been threatened, he would have communicated that his friend; the way in which he in fact expressed himself appears more consistent with his passing on to her something which had come to him second hand, that is by way of “a previous representation made by another person”.

9    I therefore uphold the submission that the evidence sought to be adduced from Ms Baldwin is not first hand hearsay within the meaning of s62. That conclusion makes it strictly unnecessary to deal with the alternative submission, which was that it could not be said that the representation was “made in circumstances that make it highly probable that the representation is reliable”. It was not suggested that there was any basis for a conclusion that Dr Rowland was not truthfully recounting to Ms Baldwin the state of his belief or knowledge; but the submission was that there was nothing in the circumstances in which the representation was made to justify a conclusion that his knowledge or belief had any reliable foundation. The problem really is the same one as is raised by s62 - as the doctor did not say anything to Ms Baldwin as to the source of his information, it is impossible to reach any affirmative conclusion either as to the reliability of the information or as to the manner in which it came to his knowledge.

10    For those reasons I rejected the tender of Ms Baldwin’s evidence and the Crown conceded that in those circumstances the evidence of Alena Privett was not relevant and would not be pressed.

11    The Crown sought to argue that the “Quamby House” evidence did not necessarily fall by reason of the ruling adverse to the Crown in respect of Ms Baldwin’s evidence, and accordingly it was agreed that I should defer ruling on the admissibility of that evidence until a later stage.

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Last Modified: 11/10/1999