Supreme Court New South Wales Medium Neutral Citation: R v Mackie (No 5) [2019] NSWSC 458 Hearing dates: 22 March 2019 Date of orders: 22 March 2019 Decision date: 24 April 2019 Before: Lonergan J Decision: Evidence can be led of the telephone intercept because it is relevant, it is admissible under s 65(8) of the Evidence Act and there is no valid basis raised by the Crown upon which to exclude it. Catchwords: EVIDENCE – whether telephone intercept evidence relevant – telephone conversation between the deceased's mother and the former partner of the accused, Bernhard Webber – Mr Webber deceased – exceptions to the rule against hearsay – evidence relevant Legislation Cited: Evidence Act 1995 (NSW) s 65 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 arose on day ten of the trial regarding whether an extract from a telephone intercept ("TI") should be admitted into evidence and played to the jury. 2. Counsel for the accused, Ms Avenell, contended that the TI extract should be admitted and played. It contained representations made by Bernhard Webber to the deceased's mother, seven days after the deceased's body was found and the day before Mr Webber hung himself. It was common ground at the trial that Mr Webber was implicated in the murder of the deceased and that the accused and Mr Webber were in an on-again off-again relationship which had existed for many years. 3. Ms Avenell contended that the contents of the TI are admissible pursuant to s 65(8) of the Evidence Act 1995 (NSW) which provides for exceptions to the rule against hearsay in criminal proceedings where the maker is not available. Subsection 8 provides that the hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. 1. The TI extract is: "LEGEND: V1: = Roslyn Cave V2: = Bernhard Webber V2: Yeah yeah well I have spoken with several people since and there's even now a possibility that somebody abused the crap out of her inside the post office Tuesday afternoon. V1: Right. V2: Yep but there is so many different stories Ros V1: Yep. V2: I really I don't know I don't know V1: No." 1. Ms Avenell submitted that the extract provides support for the proposition that the accused is liable to take things up that she has heard other people talking about and repeat them, including to the police and that this extract is an illustration of the gossip around Bega at the time. 2. Ms Avenell submitted that the evidence from police officers as to what the accused told them on the afternoon of 21 October 2015 was a type of reporting of that information but with the accused involving herself and inserting herself into the story. Also, the accused told police in her recorded interview that it was on the prompting of Mr Webber that she had attended the police station to convey that information. 3. In support of the relevance of the TI extract, Ms Avenell relied on five pieces of other evidence tendered in the trial. First, the evidence of Detective Senior Constable Heffernan, at T246-247: "Q. Wednesday the 21st. Thank you. On this occasion did Rosie say to you that she and Mr Webber had attended at the Katungul Medical Centre in Bega that morning? A. That's correct. Q. Was it the case that she said to you that when she and Mr Webber were in the waiting room at the Katungul Medical Centre, she spoke to an Aboriginal lady in her thirties that she knew as Melissa? A. She did. Q. Did the accused say that she did not know Melissa's last name but that Melissa attended Ricky's Place at the Anglican Church in Bega? A. That's correct. …. Q. Did the accused state that Melissa had told her that she had seen Marni‑Lee and a male in the Bega Post Office at about 11am on 13 October 2015? A. That's correct. Q. Did the accused say that the male had threatened to kill Marni-Lee? A. Yes. AVENELL: Your Honour, that should just be clarified. It's the accused is saying that Melissa said the male. HER HONOUR: Yes, just perhaps clarify that, Mr Crown. CROWN PROSECUTOR: Certainly, your Honour. HER HONOUR: What was conveyed was that-- CROWN PROSECUTOR: Yes, would your Honour excuse me? HER HONOUR: Yes. CROWN PROSECUTOR Q. Can you recall that the accused stated that Melissa told the accused that Melissa had seen Marni-Lee and a male in the Bega Post Office about 11am on 13 October 2015 and that the male had threatened to kill Marni-Lee? A. That's correct." 1. Second, during the record of interview on 27 October 2015, the accused was asked about the information she gave about Melissa: "Q604 And who told you to come in today the police station and tell, tell us that? A Bernie did. Q605 O.K. And why would Bernie ask you to do that? A He just said he, he just said that the police need all the information that we could get that's what he said, he said, "Just go straight to the police station and tell them what, what has been told." Q606 Yeah. So if I speak to Melissa will she confirm that that confirmation took place between you and her? A Yes Q607 Was Bernie there when that conversation took place? A I can't remember. I don't remember if he was there or not." (Ex S, p 67) 1. The third was the evidence confirming the visit by Mr Webber to Dr Piotrowski showing that the accused and Mr Webber were in fact present at the Katungal Medical Centre on the morning of 21 October 2015 (T407). 2. The fourth was a text message from the accused to her friend, Kristine Smith, also on 21 October 2015 which appears to allude to the same topic dismissed by Mr Webber with Roslyn Cave. The text message asks whether Kristine would go to the police station tomorrow to tell the police about what they had been told that day about the deceased. 3. The fifth item was a Sydney Morning Herald article dated 21 October 2015, with a note "first published 20 October 2015", which refers to the deceased having received a death threat before her body was found under a Tathra bridge. 4. Ms Avenell submitted that the article demonstrated that there was information publicly available about the deceased having told a friend about a death threat she received from "someone in her past". The article goes on to mention a person called Patrick Aberdeen, who is stated to have said that the deceased had approached him a week ago, unnerved after receiving a death threat from someone she knew and that she was a "bit worried due to the fact that the person was a bit intimidating." 5. Ms Avenell submitted that the material from the newspaper story has been adopted as fact and/or something worthy of report by the accused and that the accused involved herself in that story and repeated it to police having been encouraged to do so by Mr Webber, and that the repetition of material about what she says Melissa told her was more of the same type of behaviour. 6. The Crown opposed the tender of the TI extract because of a concern that the jury will misuse TI content. The Crown argued that the extract, referring to a conversation happening at the post office may confuse the jury, and submitted that the material offended the rule against hearsay and should be excluded. He submitted that there was a live argument regarding consciousness of guilt of the accused indicated by information she conveyed to police where she claims she was told by Melissa that Melissa had seen the deceased and a male person at the post office on 13 October 2015 at 11 o'clock, and that the male person had threatened to kill the deceased. Melissa gave evidence denying she said any such thing to the accused and the Crown will submit that the accused telling that story to the police was a lie to deflect blame from her, in consciousness of her own guilt of murder. 7. The concern expressed by the Crown was that the TI extract links those events to Mr Webber's assertion to the deceased's mother, and so the jury may use the evidence as evidence that several people had suggested that there was a possibility that somebody "abused the crap out of the deceased" at the post office. 8. The Crown expressed concern that this may well undermine the legitimate basis upon which the Crown pressed the submission that the accused had told a lie to police about what "Melissa" told her. 9. A second problem identified by the Crown was that there was no evidence that Mr Webber had told the accused this particular piece of information, only that he had told the deceased's mother in the TI extract. There is no evidence that the deceased's mother told the accused what Mr Webber had said. 10. In reply Ms Avenell stated that the TI was not tendered to undermine the consciousness of guilt submission to be made by the Crown in respect of the "Melissa" material, and the tender was not sought to prove that in fact "somebody abused the crap out of her (the deceased)" in the post office that day, but simply to illustrate the circumstances extant at the time of a "rumour mill", of which Mr Webber and the accused were part. It was submitted the TI extract was another relevant instance of this context. Decision 1. I am of the view that the TI excerpt is relevant. I accept in totality Ms Avenell's submission in that regard. 2. The extract can be admitted pursuant to s 65(8) of the Evidence Act as an exception to the rule against hearsay. First, Mr Webber is deceased and clearly unavailable. The jury can, with the assistance of the submissions of counsel, form its own view as to the significance or otherwise of this conversation in their understanding the context of events and gossip in Bega after the finding of the deceased's body and whether the Crown has established that the accused lied about what Melissa had told her in consciousness of her own guilt of murder. 3. I reject the Crown's submissions that the context of the TI extract will confuse the jury. The context of rumour-mill and small town gossip has been established by the evidence and acknowledged by a number of witnesses. The jury is entitled to take this further item, the extract of the TI, into account on that and related issues. Ruling 1. Evidence can be led of the telephone intercept because it is relevant, it is admissible under s 65(8) of the Evidence Act and there is no valid basis raised by the Crown upon which to exclude it. ********** 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