Supreme Court New South Wales Medium Neutral Citation: R v Briggs (No 3) [2014] NSWSC 852 Hearing dates: 2 June 2014 Decision date: 03 June 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: Oral evidence in accordance with the third sentence in paragraph 5 of the statement of Mr Ryan of 24 December 2012 will not be permitted in the trial. Catchwords: CRIMINAL LAW - EVIDENCE - admissibility - lay opinion evidence - whether evidence of the opinion is necessary to obtain an adequate account or understanding of the witness's perception of the matter or event. Legislation Cited: Evidence Act 1995 (NSW), ss 76, 78, 79 Cases Cited: Cornwell v Green (1823) 10 Serg & Rawle 14 Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 Sydleman v Beckwith (1875) 43 Conn 9 Category: Interlocutory applications Parties: Regina Cecil Paul Briggs Representation: Counsel: Mr J McLennan (Crown) Mr C Bruce SC (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2012/399846 Judgment 1Defence counsel has taken objection to a small portion of the foreshadowed evidence of the witness David Ryan. The evidence is contained in the statement of the witness of 24 December 2012, which became voir dire exhibit D. 2To state things succinctly, the Crown allegation is that the accused inflicted fatal violence on the deceased on 24 December 2012. Although the witness does not claim to have seen the violence actually inflicted, he gives evidence of alighting from a vehicle in Brown Street, Armidale. As he did so, he heard "yelling and screaming" from a male from inside a house, along with smashing and thumping sounds. 3Although only the penultimate sentence of [5] of voir dire exhibit D is the subject of objection, it is necessary to set out the whole of [4] and [5] in order to understand the objection. I have emphasised the sentence under consideration for convenience. [4] When we heard the commotion, Matthew and I decided to walk closer to the house to check and see what's going on inside. Just before we reached the front of the house, I saw a male of Aboriginal appearance, less than 6 feet in height, with an oversized belly and he had short hair with the sides shaved and a goatee for his facial hair walk towards the front entrance of the house. I saw that he was wearing a yellow coloured singlet, grey coloured stubby shorts and thongs. I observed that his singlet had discolouration which appeared to be some spilt liquid and I saw specks of red colour on his singlet which I thought was blood. I heard this male person yelling and screaming. At the time, I was looking at him from the side of the house and I was about 20 metres away from him. [5] As I continued watching this male person, I observed that he was heavily intoxicated. I know this because he had slurred speech and he was stumbling as he walked back inside the house. I would also describe this male person as aggressive based on his demeanour. At that time, he had his chest puffed out, breathing heavily and he was talking loudly. 4The submission of defence counsel is, in short, that the evidence is opinion evidence, and therefore inadmissible pursuant to s 76 of the Evidence Act 1995 (NSW) ("the Act"); that it is not expert opinion evidence, and is therefore not admissible pursuant to the exception to the rule of exclusion that is contained in s 79 of the Act; and, finally, that the evidence does not fall within the exception provided for lay opinion evidence contained in s 78 of the Act. That section is a follows: 78 Exception: lay opinions The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. 5As I understand it, defence counsel accepted that s 78(a) of the Act had been made out. The crux of the objection was the proposition that the evidence of the opinion of Mr Ryan that the accused was "aggressive" is not "necessary to obtain an adequate account or understanding of [Mr Ryan]'s perception of the matter or event." 6The learned Crown Prosecutor submitted that the second leg of the section had been established. Although he accepted that Mr Ryan is in a position to give evidence of the primary facts that led him to form that opinion (the puffed out chest, the heavy breathing, the loud talking, and, perhaps, the yelling and screaming referred to in [4]), nevertheless, those primary descriptions did not adequately convey the import of the evidence of the witness about the demeanour of the accused. 7In response to my query as to whether or not the section is in truth directed towards circumstances in which a witness can describe something that he or she perceived (for example, the speed of a vehicle; or the drunkenness, age, or mood of another person), but is unable to perceive or describe or remember the multitude of tiny observations that went to make up that single ultimate observation, the Crown Prosecutor submitted that it would be anomalous indeed for a party to be able to adduce such evidence more readily when less underlying detail is available. 8There is force in that submission of the Crown Prosecutor. However, in Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 at [45] and following, the judgment of the plurality (in which Gummow and Crennan JJ separately agreed with regard to the analysis of s 78) repeatedly focused on the foundation of the admission of such evidence, both at common law and pursuant to the section, as being the impracticality of a witness giving evidence of the multitude of primary observations that underpin the observation ultimately made: see [45]-[46], [51], [54] and [57]. 9At [45] the plurality said: ... The usual examples are age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state, but a thorough search would uncover very many more. The problems which arise in examples falling into this category would have been reduced, though not completely solved, if, at the time of the observation, the observer had foreseen that one day he or she would be questioned by a police detective or a barrister, for then the observer might have made some conscious contemporaneous attempt to sort out the primacy facts so as to facilitate their future recollection and expression. But in many cases, to endeavour to describe the primary facts underlying the inference may be ineffective or misleading without stating the inference. The reason why it is very difficult for the observer is that it is almost impossible to separate the inferences from the primary facts on which they are based, and often very difficult to identify and recollect the primary facts themselves. [Footnotes omitted] 10At [46] the plurality extracted a portion of the judgment of Gibson J in Cornwell v Green (1823) 10 Serg & Rawle 14 at 16, subsequently approved by Wigmore: There are cases where a single impression is made by induction from a number of others; as, where we judge whether a man is actuated by passion, we are determined by the expression of his countenance, the tone of his voice, his gestures, and a variety of other matters: yet a witness speaking of such a subject of inquiry, would be permitted directly to say whether the man was angry or not ... I take it, that wherever the facts from which a witness received an impression are too evanescent in their nature to be recollected, or are too complicated to be separated and distinctly narrated, his impressions from these facts become evidence." [Footnotes omitted] 11The plurality also quoted a portion of the judgment of Loomis J in Sydleman v Beckwith (1875) 43 Conn 9 at 12-14, which was also approved by Wigmore: ... the principle rests: "[O]n the ground of necessity, where the subject of the inquiry is so indefinite and general as not to be susceptible of direct proof, or where the facts on which the witness bases his opinion are so numerous and so evanescent that they cannot be held in the memory and detailed to the jury precisely as they appeared to the witness at the time ... The very basis upon which ... this exception to the general rule rests, is that the nature of the subject matter is such that it cannot be reproduced or detailed to the jury precisely as it appeared to the witness at the time." [Footnotes omitted] 12At [51] the plurality said: The function of s 78(b) is to make up for incapacity to perceive the primary aspects of events and conditions, or to remember the perception, or to express the memory of that perception. 13At [54] the plurality said: The word "necessary" is not directed to meeting difficulties that arise where it is impossible or inconvenient to call the person propounding the opinion as a witness. It is not analogous to the provisions permitting evidence of hearsay statements where better evidence is unavailable (eg, ss 63 and 65 of the Act) or where to call better evidence could cause undue expense or undue delay or would not be reasonably practicable (s 64 of the Act). Section 78 is not a "best evidence" provision, permitting reception of the evidence if there is no better evidence. The word "necessary" is instead directed to a relationship internal to the evidence of the perceiver - the relationship between the perceiver's perceptions and the perceiver's opinion. 14At [57] the plurality said: ...Indeed the whole point of the common law rule is that it cures the difficulty that an observer may be confident about a conclusion reached from observations without being able to perceive, remember or state the primary materials which led to it. There is nothing in s 78(b) to suggest any different position. 15Here, there is no difficulty of perception, observation, or recollection in the witness giving evidence of the primary observations that led to him expressing the ultimate lay opinion about the demeanour of the accused. His statement details the three (and possibly four) primary observations that led him to his conclusion about that topic. And that statement was made, at the most, two hours after the events in question. 16Furthermore, I consider it important that the section speaks of the necessity of the evidence, as opposed to, perhaps, the desirability or the appropriateness of its receipt. 17I accept that it would be desirable, from the Crown's perspective, for the jury to have the conclusion that Mr Ryan drew from the things that he perceived about the person and conduct of the accused. I also accept that it could be of assistance to the understanding of the jury of the events of 24 December 2012 to receive the lay opinion evidence. 18However, in the circumstances, I do not consider it necessary for that evidence to be admitted in order to obtain an adequate account or understanding of what Mr Ryan perceived. 19As was said in discussion with the parties, it would remain quite open to the Crown Prosecutor to submit that the jury would infer without difficulty from all of the primary things observed by Mr Ryan that the accused was indeed aggressive at the time that witness observed him. 20However, I am not persuaded that the test contained in s 78(b) of the Act has been made out by the Crown. Accordingly, oral evidence in accordance with the third sentence in paragraph 5 of the statement of Mr Ryan of 24 December 2012 will not be permitted in the trial. ********** 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: 01 July 2014