Supreme Court New South Wales Medium Neutral Citation: R v Mackie (No 3) [2019] NSWSC 456 Hearing dates: 21 March 2019 Date of orders: 21 March 2019 Decision date: 24 April 2019 Jurisdiction: Common Law - Criminal Before: Lonergan J Decision: The two representations of Ms Cave in issue are inadmissible Catchwords: EVIDENCE – hearsay – maker unavailable – whether circumstances in which representations were made make it highly probable that representations are reliable – whether representations made shortly after the asserted fact occurred – whether circumstances make it unlikely that the representations are a fabrication Legislation Cited: Evidence Act 1995 (NSW) ss 59, 65, 135, 137 Category: Procedural and other rulings Parties: Regina (Crown) Rosemary Priscilla Mackie (Accused) Representation: Counsel: Mr C Leggat SC (Crown) Ms M Avenell (Accused) Solicitors: Director of Public Prosecutions (Crown) Aboriginal Legal Services – Moruya (Accused) File Number(s): 2015/353540 Publication restriction: Nil Judgment 1. An issue has arisen on day seven of the trial as to whether evidence can be led from Belinda McDowell regarding her recollection of an event that occurred in July or August 2015 involving the deceased, Marnie-Lee Cave ("Marnie"). 2. On 26 February 2018, two and half years after the death of the deceased and after she had observed parts of the first trial of the accused, Ms McDowell approached police and provided a statement which included reference to an incident in July or August 2015: "6. In the winter of 2015, about July or August I was at Ricky's Place with Stephen. We were sitting in the dining hall when Marnie CAVE ran in to the hall with a worried look on her face. Marnie came straight to the back table where, Stephen and I were sitting. Marnie said, "Rosie is going to smack my head in." I said, "Na, no one is going to do that in here. It's a church and that's disrespectful". Stephen said, "It's alright, don't worry about it. Sit down and eat and I'll look after ya" Marnie sat down at the table with us. I asked her, "What's going on?" Marnie said, "Bernie bought lingerie for Rosie a long time ago and she didn't want it. He was trying to give it to me and I didn't want it. That's why Rosie wanted to hurt me"." 1. Ms Avenell, counsel for the accused, Rosemary Mackie ("Rosie"), objects to the first statement "Marnie said, Rosie is going to smack my head in" and the last sentence "That's why Rosie wanted to hurt me", as they are hearsay and are not admissible given s 59 of the Evidence Act 1995 (NSW) ("the Act") which provides relevantly: 59 The hearsay rule—exclusion of hearsay evidence (1) 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. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. 1. The Crown prosecutor submitted that these representations should be admitted as the maker is deceased and the representations come within the exceptions set out in s 65(2)(b) and (c) of the Act: 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: (a) … (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) … 1. In respect of s 65(2)(b) the Crown prosecutor argued that it was relevant as evidence of "the nature of the relationship" between the deceased and the accused, and was an assertion made by the deceased shortly after or contemporaneously with the asserted fact and in circumstances that made it unlikely that the representation was a fabrication. 2. The Crown prosecutor argued that I should infer because she had run into the group with a worried look on her face, this provides the required temporal connection to the asserted fact. The deceased's worry and concern were demonstrated by the contents of what she said, that is, that Rosie was "going to smack (her) head in". 3. The Crown prosecutor argued that the asserted facts were unlikely to be a fabrication because at that time there were no specific circumstances in issue between the deceased and the accused and nothing happening in July 2015 that would have contributed to a motivation for the deceased to give a fabricated account. There is no apparent motive for her to have feigned being worried and concerned. 4. The Crown prosecutor argued that alternatively, I should admit the statements under s 65(2)(c) because given the circumstances and the subject matter, it is highly probable that the representation was reliable. He submitted that reliability can be inferred from what was said in the context of the deceased running in with a worried look on her face. He argued that there was no apparent interest in fabricating such matters on the part of the deceased and so these are circumstances that make it highly probable that what she said is reliable. 5. Ms Avenell argued that given the absence of the source of the information underlying the representations, that is, whether it was something the accused said, or something Bernhard Webber said or something someone else said or something the deceased imagined or suspected, the "circumstances" of the account remain unknown. The necessary analysis required by s 65(2)(b) and (c) cannot be made as to whether it is reliable or not or whether it is a fabrication or not. There is also no way of identifying when the "asserted fact" occurred, because the basis of it is not known and that means no assessment can be made for the purposes of s 65(2)(b) as to whether the representation was made "shortly after" the asserted fact occurred. 6. It is also unclear, Ms Avenell argued, whether the asserted fact is that a threat was made or whether it was merely an apprehension or fear. Further, the subject matter referred to as the origin of the issue was lingerie bought "a long time ago", introducing the prospect that the representation was not proximate in time to the asserted fact. 7. Ms Avenell also argued that it is potentially a "back door" way of admitting material that is actually second hand hearsay because there is no clarity in the representation, or the circumstances surrounding its making, as to where, when or from whom the deceased obtained the information. 8. Ms Avenell argued that even if the representation met the requirements of s 65(2)(b) or (c), it should be excluded pursuant to ss 135(b) and 137. 9. Section 135 provides: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 1. Section 137 requires me to exclude evidence if the requirements of the section are satisfied: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 1. In respect of s 135 considerations, Ms Avenell submitted that Ms McDowell's statement to the police was not made until February 2018. The last two paragraphs of it make it clear there may well be problems with its reliability. This is not only because it was made 2.5 years after the events of which it speaks, but that it was made after hearing some unspecified evidence in the first trial, as well as the closing arguments put to the jury on Ms Mackie's behalf: "12. In February 2018, I went to the trial of Rosie MACKIE at Bega. Once I went in and sat down, but got told to leave because there was an undercover Police witness. The second time the Doctor from Katungal was giving evidence and then 2 blokes after that. The third time Rosie's Barrister was doing his closing argument to the Jury. 13. I have realised that no one had said anything about the lingerie or Marnie being threatened, so I thought I should tell the police." 1. Ms Avenell argued that this raises a concern that the closing address included reference to evidence of other witnesses called in that trial about assertions that the deceased had "her face smashed in so she was unrecognisable". Ms Avenell submitted that to properly cross-examine Ms McDowell in this context, Ms Avenell would need to go into detail as to what Ms McDowell had heard of the closing address in the previous trial, what other evidence she heard in the previous trial and to examine how, and if, it affected her statement. Ms Avenell submitted that problems with this necessary analysis confusing or potentially misleading the jury are obvious and in a way not manageable by the giving of legal directions. 2. Further, Ms Avenell submitted, the problem was compounded because a statement was made on the same day by a Mr Stephen Fulton, who is referred to in Ms McDowell's statement as having been physically present for the conversation in issue. He also will need to be cross-examined in detail about what he saw and heard, and this could necessarily introduce a discussion he included in his police statement where there was a recount by Ms McDowell of what was said to her by the deceased. This necessary forensic inquiry potentially then introduces third hand hearsay evidence, which the jury will then have to be directed to put to one side, causing potential for confusion. Decision 1. The Crown's arguments on s 65(2)(b) and (c) are not persuasive. I am not satisfied that the representations in issue come within either exception to the rule against hearsay. There is no doubt that the Crown wanted to use the material as evidence of the truth of the material contained in the representation that the accused had that intention. 2. The threshold problem is that because of the form of what was said, I am unable to identify, nor is the Crown able to identify for me, "the circumstances" at a sufficient level of certainty to allow me to make the necessary assessment of whether the asserted facts occurred in circumstances that make it unlikely that the two representations in issue are fabrications, or that they were made in circumstances that make it highly probable that the representations are reliable. 3. The representations in issue are lacking any revelation as to their origin. They may be impressions the deceased has formed based on fear and her own imagination. They may be repeating what she has been told by some other unspecified person, and thus not firsthand hearsay and so offending s 62 which restricts the application of exceptions in Div 2 of Part 3.2 of the Act to first hand hearsay. They may be mistakes, or a cry for attention. 4. I am also persuaded by the submission made by Ms Avenell that there is no clarity as to the time when the "circumstances" I need to examine occurred, particularly given the introduction of something that happened "a long time ago" where "Bernie bought lingerie for Rosie that she didn't want…he was trying to give it to me and I didn't want it. That's why Rosie wanted to hurt me". This seems to be a reference to events that occurred some time in the past. The immediacy, in terms of the asserted fact articulated to those present on this occasion in July/August 2015, is unknown. 5. If I am wrong about the conclusion that s 65(2)(b) and (c) are not satisfied, I would exclude the material pursuant to s 137 of the Act because its probative value is outweighed by the danger of unfair prejudice to the accused. 6. I accept the submission of Ms Avenell that given the vagaries of the two representations in issue, without any revelation of their origin or basis, attributing malice and violent intent and a reason for it to the accused, the representations run a substantial risk of being used by the jury in a way that is prejudicial and unfair to the accused. I am of the view there is a real risk that the evidence will be misused by the jury in some way, notwithstanding proper directions. 7. Given that conclusion, I do not need to decide whether I should exercise my discretion pursuant to s 135(b) of the Act, as I have formed the view s 137 requires me to refuse to admit the evidence, and in any event have determined the representations cannot be admitted as they offend the rule against hearsay. Ruling 1. The two representations of Ms Cave in issue are inadmissible. ********** 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: 20 May 2019