R v Bidner (No 2) [2023] NSWSC 943

Supreme Court New South Wales

Medium Neutral Citation: R v Bidner (No 2) [2023] NSWSC 943 Hearing dates: 28 February 2023 Decision date: 28 February 2023 Jurisdiction: Common Law - Criminal Before: Wilson J Decision: 1. Exclude the evidence of statements made by Ms Imogen Walker Bietmann to Ms Lee-Alice Mears, Detective Senior Constable Cooper or Senior Constable Smithers. Catchwords: CRIMINAL LAW – evidence – application pursuant to s 65(2) of the Evidence Act – exception to the hearsay rule – application opposed by the accused – absence of a witness statement – reliance on Adam v The Queen – hearsay upon hearsay Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 Category: Procedural rulings Parties: Rex (Crown) Adam Bidner (Accused) Representation: Counsel: B Costello (Crown) M Hobart SC (Accused)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Just Defence Lawyers (Accused) File Number(s): 2020/202106 Publication restriction: Nil

EX TEMPORE JUDGMENT 1. HER HONOUR: The Crown seeks to lead evidence of a statement said to have been made by Imogen Walker Bietmann to three separate people on three separate occasions. Those persons were Lee-Alice Mears, Detective Senior Constable Ash Cooper, and Senior Constable Smithers. The accused objects to the admission of that evidence. 2. Exhibit [voir dire] VDA contains the statements of the three people who have recorded conversations with Ms Walker Bietmann in which she is said to have recounted a relevant statement made by the accused. 3. Lee-Alice Mears said in her statement of 12 July 2020 that, on an occasion on the previous day, 11 July, she saw Ms Walker Bietmann at the latter's home. She recalls Ms Walker Bietmann saying "Bidner" - that is the accused - "told us the next day about your dad. We really wanted to tell you but we were in a position." Further, "Bidner was crying when he told us." Ms Walker Bietmann is said to have recounted to Ms Mears: "Bidner said that your dad came at him with a metal pole, and that he just got in the car and ran him over. He never said who he was with, but he has dropped this on us. I wanted to tell you." 1. Detective Senior Constable Cooper, in his statement of 16 September 2020, recorded Ms Walker Bietmann as saying on 16 July 2020: "Bidner did come here the next day. He was shaken up about the accident. He claims it was an accident, but he was freaking out about it. He ran him over, but it was an accident." 1. Senior Constable Smithers spoke to Ms Walker Bietmann rather later on 28 July 2022. In the officer's statement of 8 August 2022, he records Ms Walker Bietmann as saying: "I spoke with detectives but I didn't tell them that Adam ran him over. I think I told them that Adam told me that he was at the tip when Shane came at him with a pole. But I'm not giving you a statement." 1. As the last piece of that conversation suggests, Ms Walker Bietmann did not provide a statement to Senior Constable Smithers, nor did she provide a statement to Detective Senior Constable Cooper, and she has never given any statement or recorded account of what she says - according to other witnesses - the accused told her. 2. In the absence of a statement, Ms Walker Bietmann was called before the Court today to give evidence on the voir dire. She gave evidence that the accused had never said anything to her about the circumstances of Mr Mears' death, and she denied saying any of the things attributed to her by either Ms Lee-Alice Mears or the two police officers. 3. Her evidence to that effect is broadly in keeping with that of Joshua Gill who was said to have been present on the first two occasions on which Ms Walker Bietmann made an oral statement about something the accused was said to have told her concerning the death of Mr Mears. Mr Gill, too, denied that the accused had said anything to him about the relevant incident when he was called to give evidence yesterday, although he did say that there were rumours flying around and on social media, and that people were talking about the rumours. 4. The Crown contends that the evidence of what Ms Walker Bietmann is said to have said to others should be admitted pursuant to s 65(2) of the Evidence Act 1995 (NSW) as an exception to the hearsay rule. The Crown relies upon Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 in support of its contention. In Adam, the High Court held that evidence of a witness to the murder of a police officer was properly admitted under cross-examination by the Crown who had called the witness. Statements the witness had previously made were held to be admissible to go to the truth of what was said, despite the witness' more recent recanting of his earlier account of events. The Crown was permitted to cross examine the witness, and when he denied the truth of his earlier out of court statements, the Crown was permitted to adduce evidence to prove the truth of his initial accounts. That proof came in the form of an electronically recorded interview in which the witness had been digitally recorded giving a full account of what he saw and heard on the occasion of Senior Constable Carty's murder. 5. The situation here, it seems to me, is quite different to that prevailing in Adam. Ms Walker Bietmann has never made any formal statement that was recorded in a format or in such a way as to make the utterances undeniable. She did not give a witness statement, despite being asked by police on more than one occasion to do so, and she was never electronically recorded giving any account of what the accused supposedly told her about Mr Mears' death. The Crown has nothing but hearsay statements recording Ms Walker Bietmann's supposed account of a statement made by the accused. 6. I do not believe that s 65 is intended to capture evidence of hearsay upon hearsay. Indeed, if one looks at Division 2 of Part 3.2 of the Evidence Act, it restricts the operation of the division to first-hand hearsay as referred to in s 62 of the Act. If the Crown was permitted to lead the evidence from Ms Mears and the two police officers, it would be to prove the initial accounts supposedly made by Ms Walker Bietmann. Ms Walker Bietmann would have to be called first. Presumably consistent with what she said to the Court this morning, in evidence in-chief, she would deny that she had any conversation with the accused about the circumstances of Mr Mears' death. 7. If leave were granted to the Crown pursuant to s 38 of the Evidence Act, as it was today, to cross-examine Ms Walker Bietmann, again, it is reasonable to assume that she would do as she did this morning under cross-examination and maintain that she never made any statement as to what the accused told her, and never told Ms Mears or the two officers the precise words that are attributed to her by those witnesses. 8. If she denied, as it is reasonable to conclude she would, having made such statements, the Crown contends that it would then be open to it to tender evidence of what she said. Necessarily, that could only be hearsay accounts of the three witnesses to whom I have referred. There would be nothing placed before the jury that would establish clearly that Ms Walker Bietmann made the statements that she is supposed to have made. It would be a situation which is referred to in Adam as effectively calling evidence for an improper purpose, and that is calling a witness known to be hostile for the sole purpose of getting before the jury a prior inconsistent statement which is inadmissible to prove the facts against the accused. That, in earlier case law, has been referred to as an improper approach to take. 9. Here, though, the situation would be even less open because, as I have said, there is no clear evidence of any prior inconsistent statement which a jury could accept was incontrovertibly made by Ms Walker Bietmann. 10. One of the purposes of the law in restricting the admissibility of hearsay evidence is stop the sort of situation which leads to unreliable evidence of someone saying "someone said someone said something happened" going before the jury, and that would be precisely the situation that would apply here. Ms Walker Bietmann would say she made no such comments; other witnesses would say she said that the accused said something. 11. That, in my view, is not the sort of hearsay that falls within s 65 of the Evidence Act. It is precluded as hearsay evidence under the hearsay rule, and having come to that conclusion, the Court excludes the evidence, either an attempt to extract the evidence from Ms Walker Bietmann, or evidence-in-chief from Ms Mears, Detective Senior Constable Cooper or Senior Constable Smithers as to what was allegedly said.