R v Ryan [2020] NSWSC 1394

Supreme Court New South Wales

Medium Neutral Citation: R v Ryan [2020] NSWSC 1394 Hearing dates: 1 October 2020 Date of orders: 1 October 2020 Decision date: 01 October 2020 Jurisdiction: Common Law Before: Button J Decision: Hearsay evidence inadmissible Catchwords: CRIMINAL LAW – murder – evidence – hearsay evidence – witness unavailable – consideration of other criteria for admission – evidence inadmissible Legislation Cited: Evidence Act 1995 (NSW), s 65(2) Cases Cited: Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47 Category: Procedural and other rulings Parties: Regina (Crown) Paul Ryan (Accused) Representation: Counsel: B Campbell (Crown) J Watts (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2018/447939

Revised ex tempore Judgment

Application to adduce hearsay evidence 1. Objection has been taken by defence counsel to some portions of the voir dire exhibits B and C. 2. It is agreed that in order to get those objected portions into evidence before me as the tribunal of fact, the Crown would need to overcome the hurdles in s 65(2)(b) and (c) of the Evidence Act 1995 (NSW). That is because the deceased, tragically, is not in a position to be cross-examined, of course, about anything that she has said about the relationship between herself and the accused. She is undoubtedly unavailable. But the question is whether the extra preconditions for these exceptions to the rule against hearsay have been established. 3. In Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47 the High Court of Australia made it clear to trial judges that one cannot undertake a nebulous or impressionistic analysis, in terms of compliance with those preconditions. Really, one needs to look at each and every representation and assess whether the hurdles have been overcome. 4. Of course, I am not disrespecting that authority. But the parties are content, at least at this first stage, for me to speak generically (a) because all of the representations under objection are of the same kind; (b) on the Crown thesis they all share the same attribute of contemporaneity or close to it; and (c) because the same two circumstances are relied upon to "get over" the statutory hurdles. 5. In those circumstances, I am content to adopt the joint position of the parties, the highly experienced Crown Prosecutor having made it clear that once my position is clear, it can be understood that he will comply with it in a granular way. Of course, if there is any dispute about the parameters of my approach, the parties are immediately at liberty to place that dispute before me. 6. The High Court at [60] emphasised the strictness with which the statutory exceptions need to be approached. The point was made that the admission into evidence of a hearsay statement adverse to an accused has serious procedural consequences, first and foremost the inability to cross‑examine the maker of the statement if it is inculpatory. 7. I think respectfully, as a matter of common sense, the rule against hearsay is something that has been part of our jurisprudence for hundreds of years, and I believe it is the objective intention of Parliament that exceptions having been carved out by Parliament be approached with a degree of rigour, and with appreciation of the consequences. 8. As I have said, what is under objection here are things said to have been said by the deceased about her relationship with the accused to her sister, shortly after either an event occurred or a state of affairs developed. 9. It can be seen that s 65(2)(b) in contrast to s 65(2)(c), has a temporal component. For the sake of argument only, I am prepared to accept the proposition that it is correct to say that what the deceased's sister says the deceased said can be characterised as having been said by the deceased "when or shortly after the asserted fact occurred". So, accordingly, I will not analyse that necessary precondition further. 10. As the High Court has said, and as the learned Crown Prosecutor accepted today, it is a matter of the Crown discharging the onus (for want of a better word) in both cases, though there is a different standard of proof with regard to para (b) and para (c), and in particular the standard of proof - if that is the right term - is higher with regard to (c) than it is to (b). 11. The High Court has spoken of the need for positive satisfaction on my part that the preconditions have been established. 12. Mr Crown has spoken of two circumstances that apply to (b) and (c): first, that there was on the evidence placed before me on the voir dire and already before me in this judge alone trial, a close relationship between the two sisters. Secondly, these were private conversations between the two women about inherently private matters. 13. I understand the force of that. But even so, this is a question of me being positively satisfied that, for the purposes of (b), what was said by the deceased was said: "in circumstances that make it unlikely that the representation is a fabrication"; or, for the purposes of (c), "in circumstances that make it highly probable that the representation is reliable". 14. Of course in this judgment I am not casting the slightest aspersion on the honesty or otherwise of the deceased. But my approach is that persons can speak in close relationships to others about private matters, including relationships, and sometimes what they have to say may be reliable and sometimes it may not be, speaking very generally about one's approach to the behaviour of human beings. Sometimes what the person has to say could be fabricated, and sometimes it could not be. 15. Speaking generally, one knows that in human relationships, intimate relationships, there can be all sorts of emotions, psychological factors that might lead to reliability or the contrary, that might lead to truthfulness or the contrary. 16. At the end of the day, on the evidence placed before me, that is the state of mind that I have reached as the tribunal of fact on the voir dire. 17. In determining this question of law, I think that the circumstances upon which the Crown relies lead to a state of neither satisfaction nor dissatisfaction, a neutral state about possibilities of reliability, unreliability, fabrication and non‑fabrication. 18. Having reached that neutral state, it follows that the hurdles contained in the two paragraphs of the section have not been overcome by the tendering party. 19. Accordingly, the hearsay evidence will not be admitted.