Supreme Court New South Wales Medium Neutral Citation: R v Green (No 5) [2021] NSWSC 1305 Hearing dates: 5; 6 July 2021 Date of orders: 6 July 2021 Decision date: 06 July 2021 Jurisdiction: Common Law Before: Campbell J Decision: The whole of the statement of Mr Kim Enks is admissible Catchwords: EVIDENCE – hearsay evidence – maker of representation unavailable – whether unfair prejudice to the accused outweighs the probative value of the representation – unfair prejudice through inability to test evidence going to proof of indispensable intermediate fact in Crown case – unfair prejudice tempered by nature of judge alone hearing Legislation Cited: Mental Health and Cognitive Forensic Provisions Act 2020 (NSW) Evidence Act 1995 (NSW) ss 65, 137, 165 Cases Cited: Nil 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 Judgment 1. I do not propose to go into any particular detail about the facts of the case. I have already delivered a number of interlocutory judgments in relation to the admission of evidence in advance of this hearing in which I have set out, in a broad way, the factual context which underpins this special hearing under the Mental Health and Cognitive Forensic Provisions Act 2020 (NSW). 2. The Crown Prosecutor has tendered a statement of Mr Kim Enks made on 29 March 2018 at 4:10 pm. That is the day following the discovery of Ms Luckwell's body on the evening of 28 March 2018. It is the Crown case that Ms Luckwell was killed by Mr Green at around 4:20 am on 28 March 2018. 3. Mr Enks lived two doors west of the residence of Ms Luckwell. I have heard evidence from, I infer, his partner, Ms Donna Searle, about certain events. She has also given evidence that Mr Enks has since died. In the last years of his life he suffered from paraplegia and consequential disabilities following a serious car accident. He slept in the lounge room of their home which was not at the front of the two-bedroom house. 4. Mr Bouveng of counsel accepts that Mr Enks is unavailable and that one or other paragraph of s 65(2) of the Evidence Act 1995 (NSW) has been satisfied to establish the prima facie admissibility of Mr Enks's statement. However, he objects to a single sentence in paragraph 7 of the statement. Mr Enks gives evidence in his statement that early in the morning of 28 March 2018 he heard the pet dogs kept by him and Ms Searle barking and making other noises. He continued: "The next thing I heard a female scream very loudly. It was really loud and harsh like something bad. It is common to hear noises around our place at night so I didn't think to ring anyone." He further continued saying: "After the scream there was dead silence. The scream came from the direction of the units at 34 Robert Street." 1. It is that last sentence about the direction from which the scream came that Mr Bouveng takes objection to. The address referred to is the residence of Ms Luckwell. It is the Crown case that she emitted the scream during the fatal attack upon her by an assailant, and intruder, armed with a knife. 2. It will be Mr Bouveng's case in due course, that proof that the scream was emitted by Ms Luckwell, immediately before or at the time of the receipt by her of her fatal injuries, is what lawyers refer to as an essential link in the chain of the Crown's circumstantial case. That is to say, it is an indispensable intermediate fact which itself must be proved beyond reasonable doubt before the Crown can discharge its heavy onus of proof in a criminal case. For this reason, he submits that I am bound to exclude the portion of the evidence he objects to by force of the operation of s 137 of the Evidence Act. Section 137 is in the following terms: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant". 1. It is Mr Bouveng's argument that the unfair prejudice that will be suffered forensically by Mr Green, if I receive the evidence, is that as the passage is hearsay evidence, being an out of court statement, and as, on his argument, it is part of the proofs proffered of a vital part of the Crown case, the fact that he is unable to properly test the representation constitutes unfair prejudice, should I rely upon it in particular in my evaluation of the Crown case. 2. With respect, as I remarked to Mr Bouveng during the course of the argument, it is of course inherent in the admission of hearsay evidence, where evidence in that form is permitted under the Act, that the opposing party is not in a position to properly test the evidence in the same way that evidence given by a witness who saw, heard or otherwise perceived the matter in issue, may be tested by cross-examination and the like. 3. It seems to me that, with great respect, that part of learned counsel's argument, which was carefully amplified by reference to matters which could have been the subject of challenge had Mr Enks survived, is, as I have said, inherent in the admission of hearsay evidence. Not every piece of evidence admitted in this way can rise to the level of being unfairly prejudicial in the sense required by s 137, obviously. 4. The fact that the evidence goes to proof of a matter of some particular significance in the Crown case does not change the consideration that hearsay evidence will be admitted from time to time. Section 137 requires an evaluation rather than the exercise of a discretion. I acknowledge that the probative value of the evidence, if I take it at its highest, may be of some significance in the Crown case. However, I am not satisfied that it is unfairly prejudicial to admit it or that such unfair prejudice, if it existed, outweighs its probative value. It is still open to Mr Bouveng, for example, on the evidence that we have heard so far, to call into question Mr Enks's opportunity to have determined the direction of travel of the sound he heard, given what might be his disadvantaged position for the purpose of making that judgment. Especially, given the location of the room where he slept and, perhaps, by the available inference that he may have been watching the television as, on Ms Searle's evidence, was his habit when he woke during the night. 5. Moreover, as the Crown submits, this is trial by judge alone and the danger that may often arise in a jury trial of the jury opaquely misusing evidence by according it more weight than it will reasonably bear is not present. Judges are bound to give reasons for their decisions so that in a judge alone trial the use made of particular evidence is always transparent. And a verdict by a judge alone in a criminal case is more easily amenable to intervention by the Court of Criminal Appeal than a jury's verdict, at least as a practical matter. 6. Moreover, although there is no jury, I conceive it to be my duty to remind myself, in accordance with the requirements of s 165, that hearsay evidence may be unreliable and that this is so, may I say, for the very reasons that Mr Bouveng has advanced. Hearsay evidence is not readily testable, and in accordance with the usual practice of the court I warn myself of the need for caution in determining whether to accept the evidence and the weight that I should afford it when the time for my decision arrives. The availability or the necessity of that warning, in my judgment, reduces the prejudice which would ordinarily attend the admission of hearsay evidence in a criminal trial. In my judgment, s 137 is not engaged and I will admit the whole of the statement of Mr Enks. ********** 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 October 2021