Supreme Court New South Wales Medium Neutral Citation: R v Green [2021] NSWSC 846 Hearing dates: 16; 17 June 2021 Date of orders: 17 June 2021 Decision date: 17 June 2021 Jurisdiction: Common Law Before: Campbell J Decision: I will dismiss the notice of motion filed by the defence on 9 June 2021 Catchwords: EVIDENCE – Pre-trial evidentiary hearing – Where Crown no longer presses material objected to – ERISP containing mixed statements – No breach of prosecutor's duty – Notice of motion dismissed Legislation Cited: Evidence Act 1999 (NSW) s 84, 138, 192A Cases Cited: Nil Texts Cited: Nil Category: Procedural rulings Parties: Regina (Crown) Jesse Leigh Green (Accused) Representation: Counsel: B. Costello (Crown) S Bouveng (Counsel for the accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Rice More & Gibson Solicitors (Accused) File Number(s): 2018/00106348 Publication restriction: Nil Ex tempore Judgment revised 1. This matter will be proceeding as a special hearing because of Mr Green's unfitness to plead. The special hearing is fixed to commence at Tamworth on 28 June next. 2. Because the matter is contested and is one of some complexity, I fixed it for hearing today, tomorrow and Friday to deal with preliminary evidentiary matters that counsel indicated were in dispute between them. I am now informed this morning that a number of those issues either are unlikely to arise at all or, on reflection, are better dealt with at the point of tender in the special hearing when I have had the benefit of hearing other evidence which may be relevant to the question of admissibility. In particular, that question relates to tendency evidence in respect of which both the Crown and the defence have given notice. 3. Given, may I say with respect, the firm view of two experienced counsel, I am prepared to accede to their, in effect, joint application and I will determine questions of admissibility of tendency evidence during the special hearing proper, if I may put it that way. 4. Part of the context in which that joint application is made is Mr Bouveng of learned counsel's acceptance of the position that much of the evidence, other than that referring to events which took place in October 2017, is admissible on other grounds and the real question from his point of view will be whether the Crown is entitled to rely upon that admissible evidence also as tendency evidence. 5. So far as the tendency notices issued by the defence are concerned, as I understand what has been put to me, much of that material can in any event be utilised to cross-examine the individuals involved who will be called in the Crown case and although an application to have the material admitted as tendency evidence may yet be pressed, given its relevance to the credibility or reliability of the lay witnesses, subject to the credibility rule, it may not be pressed as tendency evidence at the special hearing. I suppose, to be blunt, if the cross-examination goes well then Mr Bouveng may not need to rely upon it in any other way. One understands these forensic considerationa. 6. Another matter concerned the disputed admissibility of evidence said to constitute admissions made by Mr Green at the police station following his arrest. That evidence falls into two categories: first, lawfully recorded listening device material obtained under warrant issued by a judge of this Court; and, secondly, the ERISP engaged in by Mr Green. 7. Mr Bouveng had indicated objections to the material on two bases: first, under s 84 of the Evidence Act 1995; and, secondly, by way of the discretion reposed in the Court by s 138 of the same Act. 8. Mr Costello of learned counsel, the Crown Prosecutor with carriage of the case, has informed me that, upon reflection and having had the opportunity of considering Mr Bouveng's submissions, he has formed the view, I infer, that they are well made and that the Crown will not seek to tender that material at the special hearing. 9. I did have a short discussion about the duty of the Crown to put in mixed statements so that the accused may have the benefit of the exculpatory portions of those statements, and there are always exculpatory portions, however, given Mr Bouveng's firm view, I am of the view that, having regard to the adversarial nature of the hearing, as well as its accusatorial aspects, that there is no breach of any duty of fairness owed by Mr Costello in effectively acceding to Mr Bouveng's objection. 10. In the circumstances, I will dismiss the notice of motion filed by the defence on 9 June 2021 seeking a ruling pursuant to s 192A of the Evidence Act excluding the ERISP and the listening device material. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2021