Supreme Court New South Wales Medium Neutral Citation: R v Smith (No 1) [2022] NSWSC 1567 Hearing dates: 1 and 9 November 2022 Decision date: 10 November 2022 Jurisdiction: Common Law Before: Ierace J Decision: The application for leave to tender evidence of the witness's representations is refused, pursuant to s 137 of the Evidence Act 1995 (NSW). Catchwords: EVIDENCE – Hearsay – Exceptions – whether witness statement of deceased's downstairs neighbour should be admitted into evidence – where maker unavailable due to a serious mental health issue – whether the evidence satisfies an exception to the hearsay rule under ss 65(2)(b) or (c) of the Evidence Act 1995 (NSW) ("the Act") – if an exception is satisfied, whether the evidence should be excluded pursuant to ss 135 or 137 of the Act Legislation Cited: Evidence Act 1995 (NSW), ss 65, 67, 135, 137, Dictionary Pt 2 cl 4 Cases Cited: Conway v R (2000) 98 FCR 204; [2000] FCA 461 R v Kuzmanovic [2005] NSWSC 771 R v Woodrow [2016] ACTSC 59 Category: Procedural rulings Parties: Rex Narelle Fiona Smith (Accused) Representation: Counsel: K Jeffreys (Crown) S Hall SC (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2021/8448 Judgment 1. HIS HONOUR: The prosecution seeks leave to tender evidence of an account by a witness who, it submits, is unavailable to give evidence, pursuant to ss 65(2)(b) and (c) of the Evidence Act 1995 (NSW) ("the Act"). In deference to the witness's mental health issues that have led to this application, I will not name her, but instead refer to her simply as "the witness". On 10 November 2022, I refused leave to the Crown to admit the evidence. These are my reasons for so doing. 2. Section 65 relevantly provides as follows: "65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) 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— (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable …" 1. Notice of the application was provided on 13 October 2022, in accordance with s 67 of the Act. 2. The Crown case, briefly stated, and insofar as it is relevant by way of background to the applicant, is as follows. 3. The accused, Narelle Smith, is charged that between 16 and 21 December 2020 she murdered Peter McCarthy at South Coogee. The deceased, who was aged 75, resided on the third floor of an apartment building. The Crown has led evidence of CCTV footage on which the deceased is seen travelling from and to South Coogee, and in the city, on Wednesday 16 December. Evidence has been given by the resident of a unit adjacent to that of the deceased, Cheryl Bray, to the effect that around the late morning of Thursday 17 December 2020, the deceased and the accused were present in her apartment drinking alcohol. Whilst they were present, Ms Bray was visited by her then 16 year old daughter, who has also given evidence that when the deceased and the accused left they went into the deceased's apartment. A combination of evidence is available for an inference that they did so around 2pm. 4. The deceased's body was discovered on Sunday 20 December 2020. The pathologist's opinion evidence is that the deceased died of blunt force head injuries. The unit, which according to the evidence of family members and friends was normally kept in a tidy condition, was in disarray, with the appearance that it had been ransacked. The leg of a wooden table had been broken off, wooden drawers were scattered around the unit and a large lounge chair was upended. A metal frying pan that was located near the deceased's body was significantly dented, consistent with it having been at least one of the items used to inflict the fatal head injuries. 5. There is evidence of an admission by the accused, allegedly made to a friend who in the defence case is a possible perpetrator of the murder. Forensic evidence in the form of fingerprints and DNA linked the accused to the crime scene, in particular, to the frying pan. Some of the accused's fingerprints are alleged to have been left on various surfaces, including some that were imprinted in the deceased's blood. The deceased's body was found lying on the floor with his head immediately adjacent to a chest of drawers which was underneath a window overlooking Elphinstone Road. 6. The unit immediately underneath that of the deceased was occupied by the witness. She was briefly interviewed by a police officer canvassing nearby residents at about 4:30pm on 20 December 2020. Her account, which was recorded by the police officer in her notebook and signed by the witness, included the following: "On Monday or Tuesday this week I was sitting on the couch watching television and I heard a loud sound like furniture moving around, like being thrown, and it was really noisy, the noisiest I have ever heard from Peter. So I turned my television down. I could also hear him walking up and down." 1. On 6 January 2021, the witness made a statement to police in which she referred to her earlier account, stating: "In that statement I refer to hearing loud noises coming from his unit on the Monday or Tuesday before he was found. That would make it the Monday 14 or Tuesday 15 December, 2020. I have to say that I cannot be sure which day it was that I heard the noises. I am however a bit better with the time frame. It was after lunchtime and it was before The Bold and the Beautiful show came on. The Bold and the Beautiful is on each weekday from 4.30pm. The noise I refer to sounded to me like chairs being thrown across the room, it was like heavy furniture noises. There were several noises like this and I remember thinking to myself there's chairs or furniture being thrown around. This went for a few minutes, there were several lots of furniture being thrown around. After that I heard several thuds like someone stomping or stamping loudly on the floor, this was moving in the direction of his front window which overlooks the street, Elphinstone Street. I would say this was about 3 stomps, very loud. I have never heard so much noise coming from his unit before. I was watching TV at the time and I turned my TV down because I had it quite loud and my initial thought was maybe my TV was so loud it was upsetting him. The noise stopped when I did this. I remember thinking at the time, if the noise continued I would call the police because there would have been something going on up there. I didn't hear any voices during all of this. I can say now this is the last time I have heard any noises coming from Peter's unit at all. I didn't hear anyone leaving after this for anyone arriving beforehand. I can also say Peter's TV wasn't on when this occurred because as I said he turns it up quite loud. As far as narrowing down which day it was that I heard this noise I cannot be sure and I wasn't sure on the day I made my previous statement. I can say it was prior to the day my shopping got delivered. That day was Friday, 18 December 2020. I ordered my groceries on the morning of 17 December 2020 and I can tell this from my phone. My groceries come the day after I ordered them. … I do have a bit of trouble recalling such things because I am on some medication for anxiety and other mental health issues and this can affect my concentration so it makes it hard for me to remember individual days." 1. The witness was interviewed by a journalist on 23 December 2020. The interview was in videotaped segments, during the course of which, she referred to the noises: "[A] Well I heard … chairs being thrown upstairs, there was a big commotion … I thought it was my TV, so I turned my TV down. [Q]: When was that? [A]: That was last Tuesday. [Q]: Last Tuesday? [A]: Yeah, yeah. [Q]: So he was found on Sunday … [A]: Yeah, yep. [Q]: And do you think it happened on the Tuesday? [A]: I think so, yeah. … [Q]: So just take me through again as well as you can remember what you heard on Tuesday. Was it night time? [A]: No it was the day time actually, yeah. [Q]: So what did you hear? [A]: Well I heard commotion, a big commotion upstairs, and it sounded like chairs being thrown across the room. And then I heard these big thuds … on the floor like someone you know really bashing on the floor with their feet. [Q]: Did you hear any screaming or yelling? [A]: No, well you can't hear screaming or yelling through the flats." 1. In the course of the second part of the interview, the witness was asked about the noise, and described it as follows: "Like people throwing furniture around the flat, and then there was a stomping on the thing and I thought, that's strange. And I thought maybe my TV's too loud so I turned my TV down." 1. The Crown has tendered on the application a brief report dated 6 September 2022 by the witness's treating psychiatrist, who stated that the witness, who according to her birthdate is aged 67, has been a patient of the local Community Health Service since 2013. Her treating psychiatrist said: "[The witness] has a diagnosis of chronic schizoaffective disorder, with myriad mental health admissions dating back to the early 2000s. She was first diagnosed with schizophrenia at the age of 45, following her mother's death. She has had multiple admissions to [hospitals] in the early 2000s and has had 3 admissions to [a local psychiatric unit in 2013, 2019, and 2021] with a relapse of psychotic symptoms in the context of self-ceasing her medications, complicated by alcohol and benzodiazepine dependence. I understand [the witness] has been asked to be a witness … and as her treating doctor, I don't believe that she is able to give reliable evidence due to her complex mental health history and the likely risk of decompensating by being a witness. Therefore, I would like to request that [the witness] be excused to act as a witness." 1. In a follow-up email dated 20 October 2022, the psychiatrist said that she reviewed the witness for the first time in February 2022. She stated: "I am unsure as to the reliability of [the witness's] statements as far as her giving reliable (truthful) evidence, but I am concerned that her illness/potential delusional ideas may impact on this (I cannot know for certain). I am more concerned that if she were to be called upon, it could have a potentially negative impact on her mental state due to the immense stress it puts her under – already I believe she is more anxious (and even fearful to leave her house reportedly) … I am unsure as to the 'truthfulness' or accuracy of her statements, but I do believe the process would be immensely stressful which may impact her thinking as a result. I did not know [the witness] in December 2020/January 2021 so I am unable to comment on her mental state and compare it to how it has been over the recent period. I cannot comment on whether she was able to give reliable evidence/ a reliable account when she made statements in December 2020 and January 2021." 1. Medical notes concerning the witness are to the effect that as a consequence of receiving a subpoena to attend the trial, the witness suffered a serious mental health incident and she is presently being treated in a mental health unit. Submissions by the Crown 1. The Crown submits, firstly, that the criteria of a witness being not available to give evidence is satisfied by her mental ill-health. Secondly, the Crown submits that the representations made to police on 20 December 2020 and 6 January 2021 and to the journalist on 23 December 2020, qualify as being made "shortly after the asserted fact", that is, after the occasion when the witness heard the relevant sounds emanating from the apartment above her. Submissions by the defence 1. The defence does not dispute that the witness is not available to give evidence in view of the circumstances stated in [14], above. The defence submits that, for the purposes of s 65(2)(b) of the Act, the representations made on 6 January 2021 do not qualify as being made "shortly after the asserted fact". In relation to s 65(2)(c), it is submitted that, having regard to the diagnoses of the witness and the opinion of her treating psychiatrist on the issue of her reliability, the Court could not be satisfied to the standard of high probability that the representations are reliable. 2. The defence submits that, if the Court determines that the representations are admissible on either basis, they should be excluded pursuant to ss 135 or 137 of the Act. Consideration 1. I am satisfied that the evidence is relevant. It could be used, in conjunction with other evidence, to narrow the likely time frame within which the killing of the deceased occurred, throwing into sharp focus evidence as to the accused's whereabouts between those times. 2. Clause 4(1)(c) of Pt 2 of the Dictionary of the Act provides that a person is taken to be unavailable to give evidence about a fact if "the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability". I am satisfied that, consequent to the witness's mental ill-health, she is not available to give evidence about the asserted facts concerning what she heard on the occasion in question, whatever date that was, in the week commencing Monday 14 December 2020. 3. In relation to s 65(2)(b) of the Act, I note that it is likely that the violent attack on the deceased and the ransacking of his apartment, which involved the upending of heavy items of furniture, would have created significant noise. For that reason and the unusual nature of the noise, I am satisfied that the witness would have been capable of recalling such an event for a considerable time afterwards, certainly on Sunday 20 December and, having then had a reason to recall it, to continue to recall it until 6 January. In so concluding, I have regard to a consideration of the meaning of the words "shortly after" by Miles AJ in R v Kuzmanovic [2005] NSWSC 771, at [16]: "… I think that the correct approach is to look at 'the subject matter of the event' and 'how long the memory of such an event is likely to have remained clear in the mind of the representor' or as the Federal Court put in Conway, [1] whether the matters conveyed were 'still fresh in the mind of the person recounting that narrative.'" 1. There is no evidence of the witness having a motive to fabricate her evidence as to what she heard. Accordingly, I find that it is unlikely that the representations are a fabrication. The conditions or admissibility stipulated in s 65(2)(b) are satisfied. 2. In relation to s 65(2)(c) of the Act, there is no evidence as to the witness's reliability or specific mental state at the time she made her representations to police and the journalist. I note the reference to the witness having occasional relapses of "psychotic symptoms" in recent years. A troubling aspect of her representations is that on Sunday 20 December and Wednesday 23 December 2020 she believed that she heard the fracas on the previous Monday or Tuesday, that is, 14 or 15 December 2020. As noted, there is compelling evidence in the Crown case that the killing could not have occurred before 2pm on the Thursday afternoon. That evidence provides an objective reference point with which to gauge the reliability of the witness's recollection, which suggests that at least in that respect, her evidence is unreliable. There is no independent reference point with which to judge the nature of what she heard or when it was on the day in question that she heard the noises. Her belief that it was before "The Bold and the Beautiful" commenced on the television is dependent upon her recollection. 3. The issue thus arises as to whether the representations should be excluded pursuant to ss 135 or 137 of the Act, since they are otherwise admissible. The nature of the representations is such that, unless the witness is available for cross-examination, their reliability is incapable of being tested. In those circumstances, I am of the view that there is a significant degree of unfair prejudice that would be occasioned to the accused by their admission into evidence, to a point that it outweighs the relevance of the evidence. 4. The issue is similar to one that arose in R v Woodrow [2016] ACTSC 59 before Robinson AJ, in which a witness whose evidence corroborated that of the complainant of an assault was found to be suffering from schizophrenia characterised by auditory hallucinations was deemed to be unavailable for that reason. Since it could not be ascertained whether the testimony was reliable, it was determined pursuant to s 137. 5. On 10 November 2022, I concluded that evidence of the representations must not be admitted. The application for leave to tender evidence of the witness's representations was refused, pursuant to s 137 of the Act. ********** Endnote 1. Conway v R (2000) 98 FCR 204 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: 28 April 2023