Supreme Court New South Wales Medium Neutral Citation: R v Wilson (No 2) [2017] NSWSC 1673 Hearing dates: 27 November 2017, 28 November 2017 and 30 November 2017 Date of orders: 01 December 2017 Decision date: 01 December 2017 Before: Schmidt J Decision: Lay opinion evidence admissible. Catchwords: CRIMINAL LAW – murder – special hearing – judge alone – evidence – s 78 of Evidence Act 1995 (NSW) – lay opinion evidence Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 3 Category: Procedural and other rulings Parties: Regina Pearl Marie Wilson Representation: Counsel: Ms K Ratcliffe (Crown) Mr P McGrath SC (Accused) Solicitors: Solicitor for the Director of Public Prosecutions (Crown) Aboriginal Legal Service (Accused) File Number(s): 2013/88509 and 2013/44091 Publication restriction: Nil Judgment 1. On 29 November 2017 I rejected objections to parts of the statements of two defence witnesses, Ms Goodwin and Mr Wellington, relied on in support of Ms Wilson's tendency notice. The Crown's case was that the evidence did not fall within s 78(b) of the Evidence Act 1995 (NSW). 2. These are the reasons for those conclusions. The tendency notice 1. The tendency notice identified two tendencies: 1. Mr Shepstone had a tendency to act in an aggressive or violent manner toward women with whom he was in a relationship and towards Ms Wilson in particular. 2. Ms Wilson had a tendency to not necessarily report, or seek prosecution of, serious assaults perpetrated on her by Mr Shepstone. The disputed evidence 1. Mr Wellington is Ms Wilson's foster son and Ms Goodwin was employed by The Disability Trust to supervise a crew of disabled workers who performed garden maintenance at residential premises, including at Ms Wilson's home. They both came to believe that Mr Shepstone was being violent to Ms Wilson. There is no issue that he had a tendency to commit such violence, at least when affected by alcohol. 2. Mr Wellington said in his statement that: "[6] … approximately 4-5 weeks after I left the house I noticed mum had a black eye and bruising on her face. I remember this because I was still living with my friend in Dapto, Lisa and I only lived there for a few months. Mum told me this bruising was caused by her falling down whilst drunk. I have seen a number of fight[sic] and black eyes caused by punches and the bruising on mums[sic] face was similar to other bruising I have seen caused by punches. [14] It was also common for mum to have injuries to her wrist, they mostly looked to me to be grab marks. About 6 months before Jason died, I know mum went to the hospital in Wollongong because she thought her arm was broken, I know it was around this time because very shortly after Mum was back in the hospital with Jason because of Jason's liver issues." 1. In her statement Ms Goodwin described how she came to know Ms Wilson and what she had observed in 2011 and 2012. She said that: "[12] At around the beginning of 2012, I started to notice Pearl with various injuries. I remember Pearl often had bruising up her arms, and I recall occasions where she had at various times a black eye, bad bruising around her mouth, and bruising that looked to me like the result of punches." Section 78 of the Evidence Act 1. Section 78 provides: "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." 1. There was no issue between the parties that both statements satisfied the requirements of s 78(a). 2. In Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 at [48], French CJ, Heydon and Bell JJ explained as to s 78 that: "48 Evidence about a place in which a person has fallen and about the injuries of that person is not within the category of cases where lay opinion evidence was admissible at common law and is admissible under s 78. The function of the law in relation to that category is to permit reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated. Where the evidence is that a person appeared to be drunk or middle-aged or angry, for example, it is impossible in practice for the observer separately to identify, remember and narrate all the particular indications which led to the conclusion of drunkenness, middle age or anger. For that reason, s 78 permits the conclusion to be stated: without it the evidence does not convey an adequate account or generate an adequate understanding of the witness's perception of the sobriety, age or emotional state being observed. But in cases of the present type the primary facts are not too evanescent to remember or too complicated to be separately narrated. It would be possible for an observer to list his or her perceptions of specifically identifiable medical circumstances of someone found in a drain, perceptions of specifically measurable distances between limbs and other objects and perceptions of specifically describable angles of limbs. Professional investigators like police officers, for example, commonly make precise measurements of that kind and compose diagrams to illustrate what they have measured. Those persons can often remember what they have measured even without recourse to their notes. The process is not one where component observations are made which are incapable of meaningful expression without stating the composite opinion to which they led. It is not necessary, in order to obtain an adequate account or understanding of perceptions of that kind, that the opinion be received. Whether it would be possible for an observer who had compiled these details then to say at which point the person found in the drain fell into it would depend on whether the tender was relying on s 78 or s 79. At common law, expert opinion evidence can be given as to the cause of injuries by inference from their nature. There is no reason to doubt that similar evidence in suitable form, from suitably qualified experts, about the causation of injuries is admissible under s 79. Had the ambulance officers given evidence of the medical and physical details they observed, it would have been admissible. But a statement of a conclusion by them that the respondent fell from a particular place would be opinion evidence banned by s 76. It would not have passed through the s 79 gateway into admissibility because they were not experts. It would not have passed through the s 78 gateway into admissibility because it failed to satisfy s 78(b). (citations omitted)" 1. As to the word "necessary" in s 78(b) it was observed at [50]-[54]: "[50] Meaning of "necessary". The meaning of the word "necessary" in statutes may vary from statute to statute. Its construction depends on the function it performs in the context of a particular statute. Allsop P and Grove J in the second Court of Appeal decision treated 'necessary' in s 78(b) as meaning that the opinion could not be admitted unless it was "the only way" to obtain an account of the ambulance officers' perceptions. Correctly understood, that test is sound in substance but it was not satisfied in this case. [51] 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. … … [53] It is true, as the respondent submitted, that in some statutory contexts "necessary" does not mean "sine qua non". It can mean merely "conducive". But it is not correct to construe "necessary" as meaning "not unreasonable" in s 78. That is particularly so because s 78 is an exception to a rule of exclusion, and is not to be construed so amply as to nullify the rule of exclusion. It is also so because that construction would radically depart from the common law without any sign from the Australian Law Reform Commission that this was contemplated. In particular, the Commission rejected a 'helpfulness' test: 'It is important that witnesses give evidence as closely connected to their original perception as is possible to minimise inaccuracy and encourage honesty. In addition, the term 'helpful' sets such a low threshold and is so flexible that it would be impossible for appellate courts to exercise any real control over the exercise of the power.' The same would be true if the test were 'not unreasonable' or 'possessing probative value'. [54] 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." 1. At [57] it was observed as to s 78(b) that: "57 The common law rule does not require a full statement by witnesses of perceptions and observations – though gaps of this kind may well go to weight. 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. It is possible to conclude – not in this case, but in other cases – that a person's opinion is based on what that person perceived without the person providing an exhaustive list of what the person perceived. It is true, though, that the less the witness or other observer states his or her primary perceptions, the harder will it be for the tendering party to establish the condition of admissibility in s 78(a) (because of the difficulty of establishing that the opinion is "based" on the perceptions) and the condition of admissibility in s 78(b) (because of the difficulty of establishing that the opinion is necessary to obtain an adequate account or understanding of the person's perceptions)." Mr Wellington's evidence 1. The effect of Mr Wellington's evidence is that Ms Wilson did not tell him the truth about the cause of the injuries which he saw. These injuries included facial bruising and a black eye, as well as bruising to her wrist and a suspected broken arm. 2. Mr Wellington's evidence involved three separate opinions. The first, his conclusion about Ms Wilson's emotional state, namely, that she was not prepared to tell him, her son, the truth about the cause of the injuries which he saw. That opinion rested on two further opinions which were embedded in his description of her injuries – that her facial bruising and a black eye were similar to those he had seen caused by punches, and that the bruising to her wrist looked like grab marks. 3. The Crown's objection went only to Mr Wellington's description of the injuries he saw. 4. I concluded that Mr Wellington's evidence of his opinions about the injuries were admissible under s 78(b), because it was necessary for him to give evidence of them, in order to obtain an adequate account or understanding of the injuries which he saw. 5. Without the disputed opinions, there would be no description of the nature of the injuries which Mr Wellington saw, on which his belief that Ms Wilson had become a victim of Mr Shepstone's violence and his opinion that Ms Wilson was lying about their cause, were based. 6. That would deprive the Court of an adequate account or understanding of Mr Wellington's perceptions: Lithgow at [48]. Although Mr Wellington did not identify all of the "particular facts" which led him to his disputed opinions as to what he heard, saw and perceived, s 78(b) permitted evidence of those opinions to be received: Lithgow at [48]. 7. What weight could be given to his evidence, did not arise for determination at that point. Ms Goodwin's evidence 1. The same conclusion had to be reached in relation to Ms Goodwin's evidence. The effect of her evidence was that what she saw and heard led her to the conclusion that it was Mr Shepstone who was injuring Ms Wilson. Her description of the bruising which she saw, on which this opinion was based in part, was that it looked "like the result of punches". 2. Again, that opinion was admissible under s 78(b), because it was necessary for Ms Goodwin to give evidence of it, in order to obtain an adequate account or understanding of the injuries which she saw. Without that opinion, the Court would have no adequate account or understanding of what Ms Goodwin perceived about the injuries which she saw. 3. Nor would it have her description of the nature of the injuries which she saw, on which her belief that Ms Wilson had become a victim of Mr Shepstone's violence was based. 4. In her statement Ms Goodwin also did not identify all of the "particular facts" which led her to her opinions about what she heard, saw and perceived, but nevertheless s 78(b) permitted the disputed evidence of her opinion to be received. ********** 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 December 2017