R v HG; R v WE (No 2) [2018] NSWSC 1178

Supreme Court New South Wales

Medium Neutral Citation: R v HG; R v WE (No 2) [2018] NSWSC 1178 Hearing dates: 31 July 2018 Date of orders: 31 July 2018 Decision date: 31 July 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [14] Catchwords: EVIDENCE – Lay opinion evidence – Whether lay opinion necessary to obtain an adequate account or understanding of a perception or event – Where the witnesses were able to give evidence of their own direct observations – Test of necessity not met – Evidence excluded Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36; (2011) 281 ALR 223 Partington v R [2009] NSWCCA 232; 197 A Crim R 380 R v Hillier (2007) 228 CLR 618; [2009] HCA 13 Category: Procedural and other rulings Parties: Regina – Crown HG – Accused WE – Accused Representation: Counsel: I Bourke SC and R Ranken – Crown B Walmsley QC – Accused HG J Trevallion – Accused WE

Solicitors: Director of Public Prosecutions (Cth) – Crown Birchgrove Legal – Accused HG Alexanders Lawyers – Accused WE File Number(s): 2016/3051142016/305103 Publication restriction: Nil

Judgment – EX TEMPORE (REVISED) 1. HIS HONOUR: The Crown seeks to lead evidence in its case against the accused WE of an interview that was conducted between WE and officers of the Australian Security Intelligence Organisation ('ASIO') on 19 April 2016. Objections have been taken on behalf of WE to various parts of that interview. Whilst the majority of them have been resolved, one remains for determination. 2. The accused was interviewed by two officers of ASIO on 19 April 2016. Statements of each of those officers, to whom I shall refer as 'Officer A' and 'Officer B', were tendered on the voir dire. In paragraphs 7, 8 and 9 of the statement of Officer A, the following information is provided regarding the purpose and circumstances of the interview: "7. On Tuesday 19 April 2016 myself and another ASIO officer conducted a security assessment review (SAR) of (WE) in the presence of (WE's) father. For the purposes of this statement, I refer to the other ASIO officer as 'ASIO Officer B'. 8. SAR'S [sic] are conducted as part of the process of developing a security assessment. 9. The purpose of the interview was to assist ASIO's assessment of whether it would be consistent with the requirements of security for Waleed to hold an Australian passport and provide him an opportunity to respond to ASIO's security concerns." 1. Annexed to the statement of Officer A was a redacted copy of a document entitled "Intelligence Report" which sets out what is effectively a narrative of the interview which was conducted. At issue are parts of paragraphs 74 and 75 of that report which are in the following terms: "Observations 74. (WE) presented as uninterested, disengaged and unemotional throughout the interview and seemed to have approached the interview as an obligatory formality to appease his father. (WE) responded to questions quietly, slowly and with limited responses. As questions became more challenging, (WE) mumbled, backtracked or provided vague, noncommittal answers. 75. (WE's) explanations were often short, seemed intentionally vague or void of details and inconsistent with other ASIO information. While (WE's) explanation of his movements in El-Arish and time spent in Egyptian detention facilities seemed mostly genuine, his explanation of his intention for travelling to El-Arish was unconvincing." 1. Counsel for the accused does not object to that part of the first sentence in paragraph 74 up to and including the word "interview". However, he objects to the balance of that paragraph as well as to the entirety of paragraph 75. The Crown indicated that it would not press the tender of the word "obligatory" as it appears in the second part of the first sentence of paragraph 74 but pressed the entirety of the remainder of that paragraph as well as the entirety of paragraph 75. 2. The Crown submitted that the evidence constituted a lay opinion within the meaning of s 78 of the Evidence Act 1995 (NSW) ('the Act'). The Crown submitted, in particular that without this evidence, the jury would be left with an incomplete picture of the impression of the accused which was gained by Officer A and Officer B. 3. The Crown further submitted that the stated observations of the two interviewing officers did not adequately explain the impression that they had gained of the accused and that in these circumstances the evidence was "necessary" in the sense contemplated by s 78. Finally, the Crown submitted that the accused had made a number of self-serving statements in other parts of the interview, which rendered it necessary for these passages to be admitted so as to give an adequate account of the perceptions of the interviewing officers. In support of these submissions, the Crown relied upon the decisions in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36; (2011) 281 ALR 223 and Partington v R [2009] NSWCCA 232; 197 A Crim R 380. 4. Counsel for the accused submitted that the evidence did not fall within s 78. He pointed to the fact that each of Officer A and Officer B could, and would, give evidence as to what they observed at the relevant time and that in these circumstances, the evidence was not "necessary" in the sense contemplated by s 78. Counsel for the accused also advanced a number of what might be described as "cascading" submissions in the event that I came to the conclusion that the evidence was admissible under s 78. Amongst these was a submission that the evidence should be excluded pursuant to s 137 of the Act. 5. Section 78 of the Act is in the following terms: 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. In Lithgow City Council v Jackson (supra) the plurality (French CJ, Heydon and Bell JJ) observed at [48] that the function of the law in relation to this category of evidence 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. Importantly, in terms of s 78(b), the plurality observed that the meaning of the term "necessary" may vary from statute to statute, such that its construction may depend upon the function that it performs. They concluded that the inclusion of the word "necessary" in s 78, meant that the opinion sought to be admitted must be the only way by which an account of the relevant perception or perceptions could be obtained. Their Honours also observed (at [51]) that the function of s 78(b) is to make up for an incapacity to perceive the primary aspects of events and conditions, to remember the perception, or to express the memory of that perception. 2. Bearing these principles in mind, I am not satisfied that the evidence falls within s 78. This is so for a number of reasons. 3. Firstly, this is not a case where the primary facts upon which the asserted opinion is based are too evanescent to remember, or too complicated to be separately narrated. So much is clear from the terms in which the report has been expressed. The primary facts are stated in quite specific terms. 4. Secondly, I am not satisfied that the test of 'necessity' imposed by s 78(b) has been met. For the reasons I have already stated, adducing evidence of the opinion is not the only way of obtaining an account of the perceptions of either Officer A or Officer B. That is evident from the fact that there are other statements, to which no objection is taken, which make it clear that the witnesses are able to provide an account of what each of them observed. 5. Thirdly, the Crown's reliance on the decision in Partington is, at least to a degree, misplaced. The Crown drew my attention to the judgment of McClellan CJ at CL at [46]-[47] and placed particular reliance upon his Honour's observation that evidence of the fact that a voice had been "raised in anger" may be admissible under s 78. When the judgment is read as a whole, and paragraphs [46] and [47] are read in their proper context, his Honour should not be understood as expressing the view that evidence of that nature will always be admissible as a matter of course. Each case must necessarily be dependent upon its own facts. In my view, the observations of his Honour at [46]-[47] provide no support for the admissibility of the evidence in this case. 6. For these reasons, the evidence will be excluded.