Supreme Court New South Wales Medium Neutral Citation: R v Green (No 2) [2021] NSWSC 854 Hearing dates: 16; 17 June 2021 Date of orders: 17 June 2021 Decision date: 17 June 2021 Jurisdiction: Common Law Before: Campbell J Decision: The impugned representations are admissible as exceptions to the hearsay rule where the maker of the representation is unavailable Catchwords: EVIDENCE – Hearsay – Exceptions – Contemporaneous representations about a person's health – First-hand hearsay exception in criminal proceedings where maker unavailable – Whether circumstances make it highly probable that the representations are reliable – Where statement made to an official – Motive for fabrication – Suggestion of previously fabricated complaint Legislation Cited: Evidence Act 1995 (NSW) ss 65, 66A, 192A Cases Cited: Clarke (a Pseudonym) v The Queen [2017] VSCA 115 R v Singh (No 4) [2021] NSWSC 75 Texts Cited: Nil Category: Procedural rulings Parties: Regina (Crown) Jesse Leigh Green (Accused) Representation: Counsel: B. Costello (Crown) S. Bouveng (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Rice More & Gibson Solicitors (Accused) File Number(s): 2018/106348 Publication restriction: Nil Ex Tempore Judgment Revised 1. The Crown seek an advance ruling under s 192A of the Evidence Act 1995 (NSW) concerning the admissibility of seven hearsay representations contained in a statement of Ms Temia Lindquist-Ford of 10 April 2018. Ms Lindquist-Ford is an official of the social housing provider which was Ms Luckwell's landlord. Ms Luckwell is the alleged murder victim. She is the maker of the representations and, of course, is unavailable because of her demise. 2. I am dealing with what have been put forward as two representations made by Ms Luckwell during her lifetime relevant to her "relationship" with Mr Green. The two representations are part of a composite sentence contained in para 11 of the statement of Jodie McNamara of 10 April 2018. The statement is: "[Ms Luckwell] also told me how she was fearful for her and her daughter as Jesse Green would turn up at her house uninvited and [she] would tell Jesse to leave, but he would not and would become abusive and leave needles all around the unit." 1. For the purpose of an advance ruling under s 192A of the Evidence Act 1995 (NSW) about admissibility, the Crown have broken the statement up into two parts. Part A relates to Ms Luckwell being fearful of the accused turning up uninvited at her place and part B is a representation of fact that when he did turn up he would refuse to leave and become abusive. It is appropriate to deal with the matter that way because alternative bases of admissibility are propounded. 2. It is not in issue that the asserted representations are relevant as going to the nature of the relationship between Ms Luckwell and Mr Green. Nor is it an issue that, obviously, Ms Luckwell is unavailable because she is now deceased. 3. Mr Bouveng of learned counsel for Mr Green accepts that part A is admissible under s 66A relating to contemporaneous statements about, I will say in summary, feelings, sensations, intentions, knowledge or state of mind. Obviously, the part A statement, that she is fearful, relates to her feelings or state of mind. However, part B about Mr Green's conduct does not fall into that category. I think the Crown accept that. 4. The Crown, however, say that the part B representation is admissible under s 65(2)(c) of the Evidence Act. That provision, so far as is material, is in the following terms: "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 ... (c) was made in circumstances that make it highly probable that the representation is reliable". In this case, the evidence is to be given by Ms McNamara. There is no question that she saw, heard or otherwise perceived Ms Luckwell making the statement. The question is whether the representation by Ms Luckwell was made in circumstances that made it highly probable that the representation is reliable. 1. The Crown, who carry the onus, obviously, as to admissibility, rely upon the following factors: 1. Ms Luckwell's relationship with Ms McNamara was a professional one because Ms McNamara was the responsible officer of Ms Luckwell's social housing landlord and was processing a complaint about Mr Green in his capacity as Ms Luckwell's neighbour; 2. Ms Luckwell had nothing to gain from making the representation; 3. Ms Luckwell acted on the verbal representation by completing a complaint form and making an application for transfer, although it is apparent that Ms Luckwell was counselled to complain to police and she refused to do so. 1. I interpolate that, in that regard, the Crown point out that that last topic is also dealt with in another statement which will be subject to the next ruling inasmuch as Ms Luckwell gave an explanation as to why she had not gone to the police. 2. Mr Bouveng disputes that Ms Luckwell had nothing to gain from making the representation. In his submission, the prospect of a transfer to better accommodation was an aspect of gain which is a circumstance affecting the reliability of the representation. Moreover, the failure of Ms Luckwell to report to police, whatever her explanation for that is, on Mr Bouveng's submission, is also a circumstance which in fact affects the reliability of part B. In that regard, he points to a statement by Stuart Blair, admitted as part of Exhibit VD1, as an instance of Ms Luckwell complaining about a person, with whom she was in a relationship, and making what Mr Blair said was a false accusation against him because he terminated the relationship or refused to formalise it in any way. 3. I have been referred by counsel to the decision of N Adams J in the matter of R v Singh (No 4) [2021] NSWSC 75 where her Honour dealt with similar issues in a similar context for the purpose of a murder trial and, with great respect, summarised the current state of the law relating to the admissibility of representations made by a deceased person in a very learned way. 4. In the context of dealing with these matters in a summary way, it is not possible or perhaps appropriate for me to engage in a detailed analysis of the current state of the law relating to s 65(2)(c). Her Honour, however, emphasised that the focus of the question of admissibility is whether the objective circumstances of the case make it highly probable that the representation is reliable. I pause to interpolate that clearly the expression highly probable imports a higher standard of proof for the purpose of admissibility than, say, the balance of probabilities. 5. Moreover, by reference to the Victorian case of Clarke (a Pseudonym) v The Queen [2017] VSCA 115 at [33] of the judgment, her Honour stated that "[i]n determining admissibility under this provision, a Court is not entitled to take into account other evidence which tends only to address the asserted fact". And in that regard, I must put out of my mind for this purpose the other evidence I have already said is admissible which of itself suggests that there was a violent relationship between Mr Green and Ms Luckwell. 6. Mr Bouveng referred me to the summary of circumstances that N Adams J helpfully set out at [43] and [44] of her judgment. I also record that at [45] her Honour stated: "[c]orroborating evidence from another witness is not relevant to the circumstances in which the representation was made." Which rather suggests I should put, for this purpose anyway, the statement of Ms Lindquist-Ford relied upon by the Crown to one side. 1. The factor that Mr Bouveng relied upon from the circumstances mentioned by N Adams J (at [44]) as not favouring reliability is factor 3, where the representor has a motive for fabrication. It is in this regard that he points to the desirability, from Ms Luckwell's point of view, of obtaining alternative, perhaps better accommodation. 2. Although the factors in this case, on one view of it, might be regarded as evenly balanced, it does seem to me that one cannot put, with great respect, too much emphasis upon the distillation of relevant factual circumstances her Honour has derived from other cases. But, were one to look to them, factor 2 (at [43]) has a part to play here. This refers to representations made to an investigating authority in the knowledge they will be checked for truthfulness. It does seem to me that that is a factor here that does favour the Crown's argument in a general way. 3. Although it may be said that Ms Luckwell had something to gain inasmuch as either the nuisance or annoyance would desist or she would get moved away so she was no longer vexed by it, they are hardly, for instance, in my view anyway, unwarranted gains if one gives some credence to the nature of the complaints being made. 4. Moreover, Ms McNamara was working in an official capacity and the circumstances of the complaint to her had consequences, not only for Mr Green potentially, but for Ms Luckwell if she made a false and unwarranted complaint. 5. Although these matters are not easy to resolve, I'm satisfied that part B, as I have put it, was made in circumstances that made it highly probable that the representation is reliable. 6. I emphasise I'm dealing with questions of admissibility only. The question of whether, at the end of the day, the evidence is accepted when all of the evidence is in and evaluated for the purpose of making the decision that will be called for in this case, one way or the other, may lead to its rejection. That is an entirely normal incident of the judicial process, but I rule under s 192A that part A and part B of the representation contained in para 11 of Ms McNamara's statement of 10 April 2018 are admissible. ********** 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: 15 July 2021