R v Tabbah; R v Tiriaki (No 1) [2014] NSWSC 564

Supreme Court New South Wales

Medium Neutral Citation: R v Tabbah; R v Tiriaki (No 1) [2014] NSWSC 564 Hearing dates: 9 April 2014 Decision date: 09 April 2014 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Evidence not admissible. Catchwords: EVIDENCE - objection to hearsay evidence Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 Vickers v R [2006] NSWCCA 60 Category: Procedural and other rulings Parties: Regina Salim Tabbah Wassim Tiriaki Representation: Counsel: Mr T Hoyle SC (Crown) Mr P Lange (Tabbah) Mr C Waterstreet (Tiriaki) Solicitors: Director of Public Prosecutions (Crown) Hanna Legal (Tabbah) Elie Rahme & Associates (Tiriaki) File Number(s): 2012/73478 2012/73453 Publication restriction: No

EX TEMPORE JUDGMENT 1There was an objection taken to questions sought to be asked of Mrs Hedges, about a threat made against Mathew Hedges on Facebook, which was dealt with at paragraph 17 of her statement. She did not say in her statement that she had discussed such a threat with him. 2What Mrs Hedges said in her statement was that her daughter Prue had told her about such a threat and its terms and that she had never seen the threat herself. 3The objection was taken on the basis of relevance and that the evidence was not admissible, because it was hearsay. 4The relevance of the evidence was explained and that objection was not pressed. The hearsay objection was, notwithstanding the reliance placed on one of the exceptions to the hearsay rule provided in s 66 of the Evidence Act 1995 (NSW). 5Hearsay evidence is not admissible, s 59 providing that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. 6There is no question that any evidence which Mrs Hedges could give about a threat made on Facebook involves hearsay. Such a threat is a representation, defined in the Dictionary to include "(a) an express or implied representation (whether oral or in writing)". As was submitted by Mr Waterstreet, what was written on Facebook was a representation as to an intention in future to hurt Mathew Hedges. The representation made on Facebook was made by the person who posted the threat. 7The Crown accepted that evidence which Mrs Hedges' daughter could give about the Facebook threat would be first-hand hearsay of that representation, because she had read it. Any evidence which Mrs Hedges could give about that threat involves second-hand hearsay, she not having read the threat herself, but having been told about it by her daughter. 8The Evidence Act includes a number of exceptions to the hearsay Rule in Division 2 "First-hand" hearsay of Part 3.2 Hearsay. As explained by Simpson J in Vickers v R [2006] NSWCCA 60 at [64] - [65], the reason for the limitation in the Evidence Act of the admission of hearsay evidence to first-hand hearsay is "the inherent unreliability of second-hand hearsay, affected as it is by the honesty and accuracy of the recollections of the person who is said to have heard, seen or otherwise perceived the making of the original representation". 9Section 62 provides: "62 Restriction to "first-hand" hearsay (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. (3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made." 10Section 62(2) is concerned with something which a person has perceived. In Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 355, French CJ, Heyden and Bell JJ observed at [43] as to the meaning of the word "perceived", when used in a similar context in s 78(a) of the Evidence Act (in relation to an opinion "based on what the person saw, heard or otherwise perceived about a matter or event"): "Ordinary meaning of "perceived". The approach of Kirby J corresponds with one of the ordinary meanings of "perceive" - to observe by one of the five senses of sight, hearing, smell, taste or touch. That is the first of the two meanings which the Macquarie Dictionary gives for "perceive" (Federation edition, (2001), vol 2 at 1417. In Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 at [21]-[27] White J held admissible a lay opinion in a document admitted under s 64(3) giving the effect of a telephone conversation as distinct from its precise words. In the course of doing so he said of the person who expressed the opinion: "I include in his perception of the conversation his understanding of it. A person's perception includes what the person understands about the matter perceived of which he or she has gained knowledge through the senses." He then cited the first Macquarie meaning. He criticised other authorities for adopting an unduly narrow approach to s 78. It is not necessary to decide in this appeal whether that criticism is correct, and whether an "understanding" is always within "perception"; it suffices to say that the quoted passage is limited to conversations, and does not seem wrong when so limited.) "1. to gain knowledge of through one of the senses; discover by seeing, hearing, etc. 2. to apprehend with the mind; understand." It is also the third meaning of "perceive" given by the Oxford English Dictionary: [2nd ed (1989), vol XI at 520.): "To apprehend (an external object) through one of the senses (esp sight); to become aware of by sight, hearing, or other sense; to observe; "to discover by some sensible effects"." The view that "perceived" is used in s 78(a) in the first Macquarie and the third Oxford meanings is supported by the use of the words "saw, heard or otherwise" before "perceived". Kirby J's approach is also supported by the fact that the expression "saw, heard or otherwise perceived" appears in s 69(5), as part of a definition of "personal knowledge of a fact": the meaning there plainly corresponds with the first Macquarie and the third Oxford meanings. For what it is worth, that construction of s 78(a) appears to correspond with the intention of the Australian Law Reform Commission, which spoke of "the witness' personal perception of a matter or event" and frequently used words to that effect. (Australia, The Law Reform Commission, Evidence, Report No 26, (1985), vol 1 at 410-411 [739]-[740]. For the use to be made of the report, see Dasreef Pty Ltd v Hawchar (2011) 85 ALJR 694 at 721-722 [106]-[107] ; 277 ALR 611 at 643-644 ; [2011] HCA 21.)" 11Section 66 provides an exception to the hearsay rule, providing: "66 Exception: criminal proceedings if maker available (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. (2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including: (a) the nature of the event concerned, and (b) the age and health of the person, and (c) the period of time between the occurrence of the asserted fact and the making of the representation. Note. Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606. (3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing. (4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave. Note. Clause 4 of Part 2 of the Dictionary is about the availability of persons." 12Section 66 does not apply to the evidence sought to be called from Mrs Hedges about the threat made on Facebook, even though it is intended to call her daughter. That is because s 66 is confined to evidence of representations which fall within s 62, that is, first-hand hearsay. The person who made the representation on Facebook is not to be called. It is Mrs Hedges' daughter who read what was posted on Facebook who is to be called. It was she who made a previous representation about what she read on Facebook. It is she who can give evidence as to what she perceived when she read that message, that being the asserted fact to which s 66(1) makes reference. 13Mrs Hedges can give no such evidence. She has not perceived anything about the threat made on Facebook. What she has perceived is concerned with what her daughter told her about that threat. Such evidence is not admissible under s 66, confined as it is to first-hand hearsay.