R v Green (No 3) [2021] NSWSC 855

Supreme Court New South Wales

Medium Neutral Citation: R v Green (No 3) [2021] NSWSC 855 Hearing dates: 16; 17 June 2021 Date of orders: 17 June 2021 Decision date: 17 June 2021 Jurisdiction: Common Law Before: Campbell J Decision: Representations (a), (b), (c), (d) and (f) are admissible as exceptions to the hearsay rule. Representation (e) contains no asserted fact but is relevant as context. Representation (g) is inadmissible. Catchwords: EVIDENCE – Hearsay – Exceptions – First-hand hearsay exception in criminal proceedings where maker unavailable – Whether circumstances make it highly probable that the representations are reliable – Contemporaneous representations about a person's health – Representations made by the deceased about the accused to an official Legislation Cited: Evidence Act 1995 (NSW) ss 65, 66A, 192A Cases Cited: R v Singh (No 4) [2021] NSWSC 75 Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 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. In relation to six of the seven representations, the Crown relies upon s 65(2)(c) of the Evidence Act and, in relation to what has been referred to as representation (f), in the alternative, s 66A. The representations are contained in paragraphs 6 to 9 of the statement. It is unnecessary for me to set each of them out for the purpose of this ex tempore judgment, they are set out in full in the tabulation I have received from Mr Costello, Crown Prosecutor, and marked MFI 1. I can deal with them compendiously because the objection made by Mr Bouveng of counsel for the accused in respect of all of them is the same and goes to whether I can be satisfied that the circumstances in which each of the representations were made, and they were mostly made on the same day to Ms Lindquist-Ford, make it "highly probable", in terms of the statute, that each representation is reliable. 3. Relying upon the analysis of N Adams J in R v Singh (No 4) [2021] NSWSC 75, which both counsel have taken me to, I am particularly guided, as her Honour was, by the statements of the High Court of Australia in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32. The Justices made clear that each representation has to be considered separately. That is, that the Crown has to identify in respect of each matter the particular representation to be adduced in evidence of proof of a fact in issue. 4. There is no question in this case that the material on the whole, other than the last representation, is relevant in as much as it either goes to the nature of the relationship between Ms Luckwell and her then neighbour, Mr Green, the accused, or, so far as representation (f) is concerned, also to her feelings or state of mind at the time the representation was made. 5. The High Court also emphasised that what is required is a focus upon the circumstances in which the representation was made. At [70], as relayed by N Adams J at [27] of her judgment, the unanimous Court said, albeit of s 65(2)(d)(ii): "The focus of attention for a trial judge tasked with ruling upon the admissibility of a representation is directed [by the section] not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted." As I have said, that statement was made in respect of paragraph (d)(ii) of s 65(2). My task, as I apprehend it, is to ask whether I am affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is highly probable that each representation is reliable having regard to the circumstances in which it was made. 1. As N Adams J said (at [28]): "Thus, the focus is not on whether the representations themselves are likely to be reliable, but on the circumstances in which they were made. Objective circumstances that may preclude a finding of likely reliability include 'a specific retraction of the assertion of the relevant fact' or 'statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous': (Sio at [71]). In assessing the circumstances in which the representation was made, the Court is not undertake a general assessment of whether the representor is a reliable witness: Sio at [72]." (Original emphasis.) I have derived considerable assistance from her Honour's analysis, to which I would add her Honour's observation (at [45]) that: "[c]orroborating evidence from another witness is not relevant to the circumstances in which the representation was made." (Original emphasis.) 1. The Crown case is much like the argument put in relation to the representations contained in the statement of Ms McNamara which I ruled on earlier today and I will not repeat them. Mr Bouveng's position, again, is much like the submission advanced in relation to Ms McNamara's statement, although to quote him, he made it "more stridently" in this case. 2. In my previous ruling I accepted the Crown argument that, viewed objectively, the circumstance that each representation was made to an official for the purpose of dealing with a complaint made by Ms Luckwell under her social housing lease, and the consideration that the accuracy of the complaint would be looked into, were objective circumstances that made it highly probable that the representations in that case, and each of them, were reliable. 3. Mr Bouveng took me to other matters contained within Exhibit VD1 which he submitted demonstrated that I could not be affirmatively satisfied to the high degree necessary that the representations were reliable. And he took me to the police interview with Mr Wade Carter and in particular statements made by Mr Carter to police evincing an intention on the part of Ms Luckwell to lie to the social housing provider about how damage was sustained on her premises. He also referred to a circumstance relevant in particular to representation (f), that she had made complaints to the police about other persons. Mr Bouveng, as I understand the argument, does not rely upon the circumstance that those other persons strongly claimed that the complaints by Ms Luckwell were false as that would be to invite me to fall into the error of making an assessment, at this preliminary stage, of the reliability of the representations. He accepts that the question of the actual reliability of the representations is a matter for trial after all the evidence is in. What I am concerned with at this stage of admissibility is the probability of reliability that may be derived from the circumstances. 4. Turning then to the individual representations, I am satisfied generally that the objective circumstances make it highly probable that representation (a), representation (b), representation (c) and representation (d) are reliable. I am dealing with a hypothetical question; I am not making a decision in fact about their reliability. 5. Representation (e) is in these terms: "[Ms Luckwell] never really said why Green was doing this to her." It would seem to me that, with respect, that is not really a representation asserting a relevant fact, although it may be relevant generally as context inasmuch as an omission to explain someone else's motivation may be relevant to the acceptability of the evidence and I will admit it in any event. 1. Representation (f) was the explanation that Ms Luckwell gave about why she had not reported the matter to the police in terms of her being scared and being worried about whether the situation would escalate. I am rather inclined to think that as that is a matter which relates not to the subject of the complaint to Ms Lindquist-Ford, it is not covered by the circumstances which I have indicated to my mind satisfy the statutory test of admissibility. Not everything said in the conversation with an official might be admissible under s 65(2)(c). However, I accept, to the extent to which it is a contemporaneous statement of her feelings or state of mind, that it is admissible under s 66A. I did not understand Mr Bouveng to strongly argue the contrary and I will admit it on that basis. 2. So far as representation (g) is concerned, I note that this relates to a conversation on a separate occasion and resulted from an enquiry Ms Lindquist-Ford made about how things were going. The gravamen of the representation is that Ms Luckwell said that Mr Green "was still been (sic) an asshole". To my mind, that is a statement of lay opinion which does not satisfy the test of admissibility for such matters. As it is not evidence of an asserted fact, in my judgment it is not covered by the substance of my ruling and I rule that representation (g) is not admissible for the purpose of s 192A.