Supreme Court New South Wales Medium Neutral Citation: R v Meakin (No. 1) [2016] NSWSC 1006 Hearing dates: 19 July 2016 Date of orders: 19 July 2016 Decision date: 21 July 2016 Jurisdiction: Common Law - Criminal Before: Davies J Decision: Leave to the accused to adduce the evidence referred to in paragraphs [4] and [15] of the judgment. Catchwords: EVIDENCE – admissibility – hearsay - statement by the deceased while events fresh in the memory – evidence of statement by person who heard the representation from the accused - statement containing implied admission and exculpatory material – implied admission not an issue in the trial – whether statement admissible – admission not adverse to accused's interests – statement admissible under s 66(2) Evidence Act – accused to give evidence in trial – events fresh in the accused's memory EVIDENCE – admissibility – lay opinion – evidence of witness of accused's reaction to information conveyed to him – whether witness could give conclusionary evidence of accused's emotional state – whether evidence relevant – whether evidence could rationally affect assessment of fact in issue – evidence rejected Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Crisologo v R (1997) 99 A Crim R 178 R v Carter; Exp Gray [1991] Tas R 174 R v Parkes [2003] NSWCCA 12; (2003) 147 A Crim R 450 Sydleman v Beckwith (1875) 43 Conn 12 Texts Cited: Wigmore, Evidence in Trials at Common Law, (Chadbourn Rev, 1978 vol 7) Category: Procedural and other rulings Parties: Crown Michael Meakin (Accused) Representation: Counsel: P Barrett (Crown) G Brady SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2014/55959 JUDGMENT 1. These are my reasons for permitting certain evidence to be led by the accused from a Crown witness. 2. The Crown called Julie Meredith as a witness. She was a personal friend of the accused and had known him for approximately ten years in 2014. The Crown led evidence from her about the police making contact with the accused through her partner Ray who drank with the accused from time to time at the Plumpton Inn. 3. Senior Counsel for the accused sought to cross-examine Ms Meredith to adduce evidence of two conversations she had with the accused. The first conversation occurred later on the day of 21 February 2014, the day of the offences charged. Ms Meredith had spoken to the accused on the phone about the hit and run involving the deceased. She suggested the accused come around to her place to work it out. 4. The first conversation sought to be led occurred when the accused attended at her home somewhere between 3:30pm and 4:30pm on that day. The accused said: I don't know what I hit, I panicked, I turned left at the Doonside lights and made my way home. I didn't know what to do. I heard on the radio that it was a fella and he died. I then knew it was bad. Ms Meredith said: You have to hand yourself in. The accused said: I didn't know what to do. Ms Meredith said: Let's make a statement of what you remember before you go hand yourself in. 1. Counsel for the accused submitted that the statement made by the accused to Ms Meredith involved an admission and her evidence of that admission was admissible together with the accompanying exculpatory material. The Crown submitted that, because it was not in dispute in the trial that the accused hit the deceased with his vehicle, the material was simply self-serving and hearsay. Further, the asserted admission had not been adopted by the accused. 2. Section 81 of the Evidence Act 1995 (NSW) provides: 81 Hearsay and opinion rules: exception for admissions and related representations (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission. 1. The definition of "admission" in the dictionary to the Evidence Act is this: admission means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding. 1. In my opinion, where it is not disputed in the trial that the accused was driving the vehicle that struck and killed the deceased, the implied admission contained in the representation of the accused "I don't know what I hit" is not adverse to the person's interest in the outcome of the proceedings. It does not, therefore, amount to an admission within the meaning of the Act. 2. However, the evidence seems to me to be admissible on a different basis. Section 66 of the Act provides: 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. … Note. Clause 4 of Part 2 of the Dictionary is about the availability of persons. 1. The representation was made by the accused. The two requirements in s 66(2) are that the person making the representation has been or is to be called to give evidence and, secondly, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the accused. In those circumstances the evidence of the accused or the evidence of a person who heard the representation being made is admissible notwithstanding the hearsay rule. Mr Brady of Senior Counsel for the accused has said that the accused will be called to give evidence at the trial. The first condition is, therefore, satisfied. 2. The representation was made by the accused later in the same day that the incident occurred. In all those circumstances it does not seem to me to be in doubt, and the Crown did not contend otherwise, that the occurrence of the asserted fact was fresh in the memory of the accused. 3. In Crisologo v R (1997) 99 A Crim R 178 Simpson J (with whom Hunt CJ at CL and James J agreed) said (at 189): Statements made by an accused person at a relevant (that is, early) time are, in my view, a precise counterpart of complaint made by an alleged victim in sexual assault (and other) cases. The Evidence Act draws no distinction between the admissibility of out of court statements made by a complainant, and statements of a similar kind made by a person accused of crime. The principles applicable to the admission of evidence of complaint apply equally to the admission of evidence of relevant out of court statements by an accused person at a time when the events the subject of the statement are fresh in his/her memory and when he/she has been or is to be called to give evidence. Such evidence is, like evidence of complaint, now admitted as evidence of the truth of what was said: Hall; D (1997) 94 A Crim R 931. 1. A little further on in her judgment her Honour commented on the fact that the evidence might be regarded as self-serving but she referred to the fact that it might be said to have at least some probative value. Her Honour said (at 190): Of perhaps more importance is the content of the evidence sought to be adduced. His mother's evidence was consistent in detail with that given by the appellant, including as to conversations he claimed to have had with the complainant, and small details concerning the events in the car. Of course, the jury might have seen it as entirely self-serving, the appellant's exculpatory version manufactured by him after his arrest. Indeed, they might not have accepted that the account was given when he and his mother said it was. Evidence of an exculpatory account, given after arrest and charge to close relatives may be of very little weight indeed. On the other hand the jury might have seen the consistency of detail, maintained from a date just two days after the events in question up to the date of trial as beneficial to the case the appellant sought to make. Just what weight the jury might have attached to the evidence cannot be ascertained. But it is important not to overlook the substantially lesser evidentiary onus that an accused person bears; it is no more than to raise a reasonable doubt in the minds of the jury about the Crown case. Looked at in that light it is not possible to say with certainty that the evidence had no, or little, probative value. Assessment of the evidence was very much in the jury's province. It does not seem likely that the discretion would be exercised against admission of the evidence. Certainly this court is not in a position to say that it must inevitably have been so exercised. 1. A similar approach was taken in R v Parkes [2003] NSWCCA 12; (2003) 147 A Crim R 450 at [42]-[56]. For those reasons the accused was permitted to lead evidence of the conversation at [4] above. 2. The second aspect of Ms Meredith's evidence which the defence sought to lead concerned a conversation between the accused and Ms Meredith that took place between two and seven days after the relevant events. Ms Meredith said that she had been to the Plumpton Inn and had heard that the accused had been in a fight with the deceased. She had not previously heard of the fight. She confronted him about this at her home and informed him that the man who had been killed was the man with whom he had had the altercation. Her evidence on the voir dire was relevantly that the accused went white and his face had a blank look but he did not otherwise say anything. 3. The defence also sought to lead Ms Meredith's opinion of the accused's reaction to what she told him, that is, that he was "shocked" and the impression she got was that he did not know that the man killed was the man with whom, he had had the altercation, but I ruled that that evidence could not be given. The evidence given in front of the jury was confined to her observations of the accused when she imparted the information. 4. Senior Counsel for the accused submitted that Ms Meredith's opinion of the accused's reaction amounted to a lay opinion under s 78 of the Evidence Act. Counsel submitted that the evidence was relevant on the basis that Ms Meredith had known the accused for some ten years. He submitted that the matter was no different from evidence given of the distress or upset of a complainant in a sexual assault matter. 5. The Crown submitted that the witness could not give any evidence tending to point to the accused's knowledge of the matter with which he had been confronted. Such evidence would obviously include her conclusion about what the accused thought. 6. Before considering s 78 it is necessary to determine whether the evidence of Ms Meredith's opinion is relevant evidence. Section 55 makes it clear that evidence that is relevant is evidence that, if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings. The fact in issue for present purposes must be whether the accused intentionally hit the deceased with his motor vehicle although whether the accused knew the deceased was the man with whom he had had the altercation was a subsidiary fact in issue. 7. In my opinion, a conclusion drawn from observations made of the accused when particular information was imparted to him could not rationally affect the assessment of the probability of that fact. It could affect the assessment but not rationally because it is simply the witness's interpretation of perceptions that she made and is an attempt by her to put herself inside the head of the accused to guess at his state of knowledge. 8. The Crown ultimately accepted that the accused could give evidence of what he knew at the time he was confronted by Ms Meredith and could say that he was surprised. The Crown accepted that Ms Meredith could give evidence of the conversation and also her observations of the accused after she imparted the information, although the Crown doubted that such evidence could include the observation that the accused appeared to have a blank look on his face. 9. It may be accepted that there is an element of conclusion about that observation but it is similar to a statement that someone looked tired which is hard to break down into any other descriptive elements; or, as it is put, "the facts from which a witness received an impression are too evanescent in their nature to be recollected, or too complicated to be separately and distinctly narrated": Sydleman v Beckwith (1875) 43 Conn 12 quoted in Wigmore, Evidence in Trials at Common Law, (Chadbourn Rev, 1978 vol 7) and R v Carter; Exp Gray [1991] Tas R 174 at 176-177. On the other hand, a statement that someone was shocked attempts to guess at an emotion or thought that someone else experiences and in the present case attempts to discern the state of knowledge of the deceased concerning the statement made. 10. If the accused gives evidence of his reaction to Ms Meredith's statements, he may be disadvantaged if the jury do not hear Ms Meredith's observations of him, although they ought not hear her conclusions about what he was experiencing nor about what he knew. She is permitted to describe what she observed, and that includes the fact that he had a blank look on his face. It is for the jury and not any witness to draw inferences from proved facts such as that the accused went white and appeared to have a blank look on his face. 11. Accordingly, I permitted the defence to adduce evidence from Ms Meredith of the conversation referred to in [15] above and of her observations of him subsequently but not her statement that he was shocked. ********** 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: 03 October 2019