R v Fitzpatrick (No 4) [2019] NSWSC 974

Supreme Court New South Wales

Medium Neutral Citation: R v Fitzpatrick (No 4) [2019] NSWSC 974 Hearing dates: 1; 2; 3; 4; 5; 8 July 2019 Date of orders: 08 July 2019 Decision date: 08 July 2019 Jurisdiction: Common Law Before: Campbell J Decision: Held evidence inadmissible Catchwords: ADMISSIBILITY OF EVIDENCE – subjective evidence – representation as to state of mind – threatening physical gestures – whether admissible – held inadmissible under section 66A – requirement of direct evidence of a person who actually perceived admission – objection held – probative value outweighed by danger of unfair prejudice. Legislation Cited: Evidence Act 1995 (NSW), ss 62(3), 66A, 82, 137, 165 Category: Procedural and other rulings Parties: Regina (Crown) Paul John Fitzpatrick (Accused) Representation: Counsel: J. Tunks (Crown) D. Price (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Conaghan Lawyers (Accused) File Number(s): 2017/376874 Publication restriction: Yes - publication restriction until the completion of the matter.

Judgment 1. There was no objection to the words of a threatening nature that, according to Mr Thompson's evidence, Mr Burrows asserted Mr Fitzpatrick had said. There is now an objection to an amplification of that evidence based upon Mr Thompson's statement to the police of 11 August 2015, and in particular to the first sentence of paragraph [17], which is in these terms: John also told me that every time he saw Paul Fitzpatrick he would make a 'slit throat' gesture by running his hands and fingers across his throat whilst looking at John. 1. I apprehend, and counsel have confirmed, that the basis of the admissibility of this evidence is said to be s 66A of the Evidence Act 1995 (NSW), which is in the following terms: The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind. The basis upon which the evidence has been put forward is that the words attributed by Mr Burrows to Mr Fitzpatrick is subjective evidence about a representation Mr Fitzpatrick has made in relation to, I will simply say, his state of mind or perhaps his intention. It seems to me that the evidence in the first sentence of para 17 goes well beyond that and I would not permit it under s 66A. 1. In this respect s 62(3) of the Act is relevant. It is in these terms: For the purpose of s 66A a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge of state of mind at the time the representation referred to in that section was made. That rather suggests to me in the present context that the person, for the purpose of s 62(3), and for the purpose of s 66A, is Mr Burrows and not Mr Fitzpatrick. Reading the Act as a whole, that seems broadly consistent with s 82 of the Evidence Act, dealing with admissions, which requires direct evidence of a person, who by their own senses actually perceived the admission. I accept that the statements of future intention, if that is what they are, attributed to Mr Fitzpatrick, are not strictly speaking admissions. However, it is quite clear from s 82 that evidence of admissions is restricted to evidence given by a person who saw, heard or otherwise perceived the admission being made. 1. I am just not satisfied, in the face of Mr Price's objection, that the first sentence of para 17 is properly admissible, and I reject it. 2. If I am wrong in my approach to admissibility, then I am of the view that s 137 of the Evidence Act has been engaged, and that the probative value of Mr Thompson's proposed evidence on this particular topic is outweighed by the danger of unfair prejudice to the defendant. In particular that the jury might place undue weight upon that aspect of the evidence, notwithstanding any direction that I might give them. 3. The force of my conviction in that regard is bolstered again by the consideration that Mr Price has already asked me to give the jury - which I have done - a s 165 warning in respect of this passage of the evidence. It seems to me that, given the question mark about the reliability of such evidence, that s 137, as I have said, does have a role to play, and I reject the questions designed to elicit evidence in accordance with para 17 of the statement, which I will have marked for identification as MFI 11. I am referring to the statement of Andrew Thompson of 11 August 2015. ****** 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 August 2019