Legal Research > Evidence Act tables

Sections 55-75

 

CHAPTER 3: ADMISSIBILITY OF EVIDENCE

Part 3.1: Relevance

Section 55: Relevant evidence (s.56 - Relevant evidence admissible)

Mordy
NSWSC (Dowd J) 14.8.1996
Evidence Act 1995 (NSW) s.55 - Crown sought to lead from witness their opinion as to whether accused was in the habit of carrying a knife
Held: relevance of evidence very slight in the circumstances - “relevance” for purposes of s.55 is whether evidence “could rationally affect (directly or indirectly) the assessment of probability of the existence of a fact in issue in proceedings” - s.55 couched in the widest of terms - fact in issue as to whether accused carried a knife - evidence admissible in wide terms of the Act - evidence did not relate to a tendency to carry a knife and was therefore outside s.97.


Lockyer
(1996) 89 A Crim R 457; NSWSC (Hunt CJ at CL) 11.10.1996
Evidence Act 1995 (NSW) s.55 - tendency evidence - relevance and probative value - evidence led by accused relating to Crown’s principal witness.

Beattie
(1996) 89 A Crim R 393
Evidence Act 1995 (NSW) s.55 - drug offences - judge rejected cross-examination of police witnesses about allegations made at the Royal Commission in relation to that officer
Held: questions relevant because affirmative answer would have substantial probative value on credibility of witness - fact that witness unlikely to give affirmative answer irrelevant.

H
(1997) 92 A Crim R 168; NSW CCA 28.2.1997
Evidence Act 1995 (NSW) s.55 - sexual assault - admissibility of complaint evidence
Held: definition of relevance in s.55 wider than previous common law distinction between facts relevant to a fact in issue and facts relevant to credit - s.55 includes both common law categories.

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.55 - sexual assault - evidence of complainant’s belief that accused had assaulted people and shot someone tendered as evidence to explain why she did not call out for help
Held: relevant - not hearsay - not tendency or coincidence evidence - not credibility evidence - not unfairly prejudicial to accused.

Fowler
NSWSC (Dowd J) 8.5.1997
Evidence Act 1995 (NSW) s.55 - application by defence to exclude evidence of bullet fired and lodged under floor of house of accused - Crown theory that bullet fired from firearm owned by accused - defence argued no ballistics evidence linking bullet to firearm
Held: consideration of meaning of ‘relevant’ under s.55 - other circumstantial evidence to be called indicating evidence of lie by accused - Crown entitled to have evidence admitted as evidence of guilt and as evidence linking the weapon - evidence sufficient to render weapon capable of rationally affecting assessment of probability of existence of fact in issue.

Fowler
NSWSC (Dowd J) 21.5.1997
Evidence Act 1995 (NSW) s.55 - application by defence to call evidence as to distressed state of deceased prior to killing and bullet holes found in his car - evidence supported alternative hypothesis that deceased feared actions taken by others
Held: no evidence to link distressed state of victim with hypothesis - evidence rejected - bullet holes found in car consistent with accused’s contention that death caused by other persons - evidence relevant and admissible.

Fowler
NSWSC (Dowd J) 21.5.1997
Evidence Act 1995 (NSW) s.55 - admissibility of Crown evidence in case in reply - accused made dock statement explaining he had concealed his firearms from police for fear he would be convicted for not having licence - in previous trial had given similar evidence but expressed little concern over possible conviction.
Held: new version of events, with significantly different emphasis, could rationally affect probability of existence of fact in issue (the ownership and possession of guns at a particular time) - evidence prima facie admissible - evidence excluded pursuant to discretion under s.137 - lapse of time since previous trial taken into account

BD
(1997) 94 A Crim R 131
Evidence Act 1995 (NSW) s.55 - sexual assault - crown led evidence of complaint made to teacher and doctor.
Held: complaint evidence was clearly relevant.

Kairouz
NSW CCA 18.7.1997
Evidence Act 1995 (NSW) s.55 - cultivate cannabis - landlord of property rented by appellant saw plants at property during occupation by appellant - after property vacated police found vegetable matter.
Held: presence of vegetable matter logically consistent with and supports landlord’s observation of plants - presence of leaf capable of, along with other evidence, leading to inference that plants had been harvested.

Graham
NSW CCA 2.9.1997
Evidence Act 1995 (NSW) s.55 - sexual assault offences on daughter
Held: putting of allegations and clear denials in ERISP interview is relevant - followed Familic (1994) 75 A Crim R 229 at 234.

Panetta
NSW CCA 2.10.1997; (1997) 26 MVR 332
Evidence Act 1995 (NSW) s.55 - dangerous driving causing GBH - evidence admitted from witness driving in opposite direction to appellant that appellant’s car approached at 100 kph or more
Held: s.55 requires that rational basis for opinion before admissible under s.78 - no rational basis for opinion therefore evidence should not have been admitted - should have been a voir dire to determine if opinion had rational basis - in this case irrationality of opinion not obvious until cross-examination

Fordham
(1997) 98 A Crim R 359; NSW CCA 2.12.1997
Evidence Act 1995 (NSW) s.55 - sexual offences on 55y, mildly intellectually disabled, complainant - evidence of complainant that violence an integral part of relationship - supported by evidence of doctor - included evidence of injuries inflicted after last offence.
Held: evidence of injuries relevant and prima facie admissible under s.55 - supported evidence of complainant regarding violence in relationship - when injuries occurred does not affect admissibility.

Merritt
NSW CCA [29] 10.3.1999
Evidence Act 1995 (NSW) s.55 - robbery
Held: evidence that accused an intravenous drug user at time of arrest cannot support argument that four months earlier he was an illicit drug taker and that provides motive for robbery - evidence not relevant and therefore inadmissible.

Papakosmas v The Queen
(1999) 196 CLR 297
Evidence Act 1995 (NSW) s.55 - sexual offences - evidence of complaint
Held: (per Kirby and Gaudron JJ) evidence of particular statement probative only of making and content of statement and those inferences which, in the circumstances, may be drawn - circumstances in which statement made may make statement probative of facts asserted - consider things such as contemporaneity of statement to fact in issue and consideration of whether statement is a statement of the kind that might ordinarily be expected to be made if facts asserted were true - need more than just making of statement for it to rationally affect probability of facts asserted - in this case complaint relevant when consider circumstances in which it was made.
Held: (per McHugh J) test for relevance is based on logical test - notions of reliability and procedural fairness irrelevant - statement may be relevant although possibility of fabrication - complaint evidence will nearly always be relevant.

Serratore
(1999) 48 NSWLR 101; NSW CCA [377] 26.11.1999
Evidence Act 1995 (NSW) s.55 - murder of girlfriend - Crown led evidence of statements of victim as to obsessive and violent nature of relationship with appellant and her intention to end relationship
Held: in murder trials evidence of relationship between parties relevant and admissible - followed Wilson v the Queen (1970) 123 CLR 334 and R v Frawley (1993) 69 A Crim R 208.

Le
NSW CCA [49] 7.3.2000
Evidence Act 1995 (NSW) s.55 - sexual offences - Crown led evidence of doctor that he noticed minor injuries to complainant’s nose and eye several months after complainant alleged appellant assaulted her - complainant told doctor she had injured herself.
Held: broad approach to relevance test under s.55 - difference between question of relevance and weight to be given once evidence admitted - evidence admissible.

Hannes
[2000] 158 FLR 359; NSW CCA [503] 1.12.2000
Evidence Act 1995 (NSW) s.55 - financial offences - appellant refused permission to tender notes from notepad written by appellant - original note lost but content retrieved from indentations on pad - notes referred to ‘Mark’ - appellant sought to use notes to prove existence of partner Crown alleged did not exist.
Held: (per Spigelman CJ & Dowd J) - evidence relevant under s.55 - referred with approval to Kirby and Gaudron JJ in Papakosmas - ‘the circumstances in which a statement is made may sometimes render it probative of facts asserted’ - judgment of Gleeson CJ and Hayne J to similar effect - nature of document as personal rumination and fact that it was not retained render it probative of facts asserted - (inadmissible under s.59).
Held: (per Studdert J in dissent) - agreed with basis for determining relevance - found that document essentially a self-serving statement and therefore not relevant.

Smith
(2001) 206 CLR 650; HCA [50] 16.8.2001
Evidence Act 1995 (NSW) s.55 - armed robbery - police officers gave evidence they had prior dealings with appellant and recognised him in the bank security photographs - admissibility of evidence.
Held: evidence not relevant - police officers in no better position than jury to make comparison between appellant and person in photographs - fact in issue in this case was whether accused was person in photographs - different to case where witness asked to recognise accused.

Hall
NSWSC [827] (Greg James J) 17.9.2001
Evidence Act 1995 (NSW) s.55 - murder - lawfully recorded conversations - tapes difficult to understand - Crown proposing to call police officers to identify voices on tape
Held: similar situation to Smith - evidence of police officers not admissible

Gardner
(2001) 123 A Crim R 439; NSW CCA [381] 25.9.2001
Evidence Act 1995 (NSW) s.55
Held: followed Smith refusing to admit evidence of police officers identifying accused from photographs.

Adam v The Queen
(2001) 207 CLR 96; HCA [57] 11.10.2001
Evidence Act 1995 (NSW) s.55 - murder of off-duty police officer during scuffle outside hotel - Crown witness TS made statements to police supporting crown case - became clear at trial TS would give evidence unfavourable to Crown - judge gave leave under s.38 for Crown to cross examine TS on prior inconsistent statements - Judge also ruled statements could be used as proof of facts asserted.
Held: (Gleeson CJ, McHugh, Kirby and Hayne JJ) - dismissing the appeal - when considering whether evidence relevant pursuant to s.55 judge assumes evidence will be accepted - judge does not consider whether he thinks jury will accept evidence.

Atroushi
NSW CCA [406] 12.10.2001
Evidence Act 1995 (NSW) s.55 - stalking/possess loaded firearm - relationship evidence.
Held: evidence admissible in order to place the evidence of the offence charged into a true and realistic context

Beattie
(2001) 127 A Crim R 250; NSW CCA [502] 7.12.2001
Evidence Act 1995 (NSW) s.55
Held: followed Smith refusing to admit evidence of police officers identifying accused from photographs.

Clark
(2001) 123 A Crim R 506; NSW CCA [494] 13.12.2001
Evidence Act 1995 - s.55 - murder - evidence of hostile relationship between appellant and deceased - whether “relationship evidence” admissible - evidence of contemporaneous representations by deceased demonstrating deceased’s negative state of mind about relationship with appellant.
Held: evidence relevant - evidence did not relate to so remote a period of time as to prevent it from being relevant - related to events happening no more than five weeks before the killing of the deceased.

Adler
[2002] NSWCCA [180] 20.5.2002
Evidence Act 1995 (NSW) s 55 - obtain money by deception
Held: evidence of an appellant’s associate relevant to assessment of fact in issue in proceeding – appeal allowed.

 
Lyberopoulos
[2002] NSWCCA 280; 24.7.2002
Evidence Act 1995 (NSW) s 55, 56 - cannabis found in bags in appellant's car – appellant made two statements, “I don't think I should say" and "I don't think I should say until I talk to my solicitor “
Held: statements should not have been admitted into evidence - not relevant - didn’t strengthen Crown or defence case – conviction appeal dismissed

Nye v State of NSW & Ors
NSWSC [1270] (O’Keefe J) 2.9.2002
Evidence Act 1995 (NSW) s 55 - malicious prosecution in relation to murder of Thurgar - objection raised to tender of statement of eye witness to murder - statement included reference to anonymous note received from witness and warning from unknown male not to get involved in murder trial - also referred to two subsequent warnings received from same male not to get involved in Police Royal Commission
Held: evidence admitted - although impossible for Court to determine who may have instigated first two warnings, second two warnings given in circumstances that suggest only the police officers involved in the case had an interest - “could” in s.55 means “it is possible it may” - s.57 allows evidence to be admitted as relevant although ultimate relevance is subject to further evidence

Cohen
[2002] NSWCCA 339; 12.9.2002
Evidence Act 1995 (NSW) s 55 - Agg B&E/commit serious indictable/indecent assault offences
Held: evidence of money, by itself, merely suggestive of forming a link to offence, but taken with all other evidence, undoubtedly relevant as capable of rationally affecting assessment of appellant's guilt – conviction appeal dismissed.

Rose
(2002) 55 NSWLR 701; NSW CCA [455] 19.11.2002
Evidence Act 1995 (NSW) s 55 - murder - appellant claimed he saw estranged wife leave with man in white car - police officer gave evidence he canvassed students from university classes wife attended and no one responded to question as to whether they had ever seen her in company with man in white car - judge found there was no representation so no hearsay
Held: evidence should not have been admitted - hearsay (see s.59) - irrelevant

Riscuta & Niga
NSW CCA [6] 6.2.2003
Evidence Act 1995 (NSW) s 55(1) - supply drugs - admissibility of voice identification evidence - intercepted telephone conversations - relevance
Held: evidence properly admitted - under Evidence Act no preconditions for reception of voice identification evidence apart from requirement in s 55(1) that it be relevant - if evidence relevant it is admissible unless positive order is made excluding it under ss 135, 137 or 138: R v Adler (2001) 52 NSWLR 451. 
 
Sleiman
[2003] NSWCCA 231, 21.8.2003
Evidence Act 1995 (NSW) s 55 – stabbing murder – s 108 enabled Crown to adduce evidence of police officer’s recorded conversation (ie. other than oral evidence) as relevant corroborative evidence, as capable of affecting rationally assessment by jury of probability of fact in issue: s 55.
Held: Evidence of dying declaration was admissible as exception to hearsay rule: s 65(2)(b) and (c).

 
Pham
[2005] NSWCCA 9
Evidence Act 1995 (NSW) s 55 – murder – admissibility of letter from brother referring to "licence" – Crown relied on "licence" meaning gun

Held: adopted broad definition of relevance from Vinh Le [2000] NSWCCA 49 at paragraphs 18 and 19.

Folbigg
[2005] NSWCCA 23, 17.2.2005
Evidence Act 1995 (NSW) s 55 – Manslaughter, Intentionally inflict GBH, 3 x Murder – Mother killed four babies over ten years – Suffocated each child in spontaneous burst of anger – Earlier attack on second child caused blindness – Relevance of evidence from experts that they were unaware of any family where 3 or more children had died from cot death
Held: evidence relevant and admissible

Marsh
[2005] NSWCCA 331
Evidence Act 1995 (NSW) ss 76, 79 – bank robbery - images of accused captured by bank's security cameras - photo published in newspaper - evidence of recognition by accused's sister admitted into evidence – accused not identified by witnesses in photo ID parade
Held: In Smith no suggestion that police officers enjoyed particular advantage in recognizing accused – in this case sister had obvious advantage – because of history of relationship evidence of sister was direct evidence making ss.76 and 79 irrelevant – also admissible under s.79 as opinion evidence 

Drollett
[2005] NSWCCA 356
Evidence Act 1995 (NSW) s.55 – assault on prisoner in prison yard – offence recorded on video but image unclear – evidence given by prison officer that he saw appellant in yard immediately prior to assault – identified appellant from video – did not eye-witness assault – familiar with appearance of appellant
Held: appeal allowed - considered application of Smith – evidence relevant because witness very familiar with appearance of appellant and jury had very little opportunity to view appellant due to security arrangements at trial – but evidence not evidence of fact but opinion because purported to identify someone from scene not personally witnessed – evidence of fact if could say video accurately represented scene actually witnessed – instead witness merely selected image he believed to be appellant and followed him through the scene on the video 

RG
[2006] NSWSC 15, (Buddin J)
Evidence Act 1995 (NSW) s.55 – woman charged with drowning of 7m daughter – found naked at scene of offence – told police "I'm Jesus, I've done some bad things, I'm a bad mother, I've drowned my baby" – serious issue as to accused's mental state – whether statement constitutes admission because of ambiguity
Held: statement admitted – argument that admission must be unambiguous too strong a test for admissibility – mental illness relevant to assessment of value of admission but does not necessarily make it inadmissible – review of related authorities 

Lodhi
[2006] NSWSC 641, (Whealy J)
Evidence Act 1995 (NSW) s.55 – terrorism offences – admissibility of evidence linking accused to known terrorist
Held: evidence relevant – no discretion under s.55 – evidence either relevant or not – to determine relevance must first identify ultimate issues in case 

Nguyen
[2006] NSWSC 834, (Hulme J)
Evidence Act 1995 (NSW) s.55 – murder – admissibility of evidence of police officers identifying offenders from CCTV cameras
Held: evidence relevant – distinguished Smith – evidence established appearance of accused substantially different at trial to time of offence – identification by police based on material appreciably different to that available to jury 

Elias
[2006] NSWCCA 365
Evidence Act 1995 (NSW) s.55 – mal wound with intent – during meeting shot victim in legs – claimed acted in self defence – claimed victim had issued death threats in argument over alleged fraud – defence not permitted to adduce evidence that victim had been previously seen carrying a gun on unrelated occasions
Held: appeal dismissed – evidence not relevant to self defence where no suggestion accused had previously seen victim with gun – distinguished Cakovski
Per Rothman J – possible possession of gun by victim on earlier occasions may be relevant where accused gives evidence of belief victim was carrying a gun

 

 

Section 57: Provisional relevance

Nye v State of NSW & Ors
NSWSC [1270] (O’Keefe J) 2.9.2002
Evidence Act 1995 (NSW) s 57
Held: s.57 allows evidence to be admitted as relevant although ultimate relevance is subject to further evidence

   

Part 3.2: Hearsay
Division 1: The hearsay rule

Section 59: The hearsay Rule - exclusion of hearsay evidence

Mrish
NSWSC (Hidden J) 4.10.1996
Evidence Act 1995 (NSW) s.59
Held: s.59 reflects common law therefore common law continues to guide courts as to what is and is not hearsay

Skuse
NSW CCA 24.10.1996
Evidence Act 1995 (NSW) s.59 - sexual offences - evidence of previous complaint
Held: Act has altered common law - evidence of complaint, once admitted, is evidence of the truth of the complaint.


Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.59 - sexual assault - evidence of complainant’s belief that accused had assaulted people and shot someone tendered as evidence to explain why she did not call out for help
Held - not hearsay - evidence of accused’s reputation - not tendency or coincidence evidence - not credibility evidence - not unfairly prejudicial to accused - adequacy of trial judge’s directions as to limited use jury could make of such evidence.

Macraild
NSW CCA 18.12.1997
Evidence Act 1995 (NSW) s 59(1) - supply cannabis - undercover police officer had several conversations with co-offenders arranging supply of cannabis - later executed search warrant on farm where appellant found with cannabis - crown led evidence of conversations between co-offenders and police against appellant.
Held: conversations not inadmissible under s.59(1) - not led as evidence of the existence of a fact but as evidence of the making of agreement to sell cannabis.

Barbaro & Rovere
[2000] 112 A Crim R 551; NSW CCA [192] 26.5.2000
Evidence Act 1995 (NSW) s 59 - cultivate cannabis - witness at trial sought to recant evidence of identification - evidence admitted from police officers as to identification process and fact that witness identified appellants from photographs.
Held: allowing appeal - Act changes common law in relation to this matter - evidence of police not admissible under s.59 or s.66(2).

Ung
(2000) 112 A Crim R 344; NSW CCA 29.5.2000
Evidence Act 1995 (NSW) s 59 - importation of heroin - appellant assisted in unloading tins of pineapple containing heroin - Crown tendered statement of co-offender made to appellant at time of unloading - “Hey, hey, you don’t know which one, hey”.
Held: statement admissible - not hearsay because led to prove appellant knew some tins contained heroin not that they did contain heroin - see Walton (1989) 166 CLR 283 - knowledge of co-offender relevant to joint enterprise and therefore stepping stone to proving appellant’s knowledge - even if hearsay admissible as part of res gestae or under s.60 - Evidence Act not a code which would render evidence inadmissible.

Hannes
[2000] 158 FLR 359; NSW CCA [503] 1.12.2000
Evidence Act 1995 (NSW) s.59 - financial offences - appellant refused permission to tender notes from notepad written by appellant - original note lost but content retrieved from indentations on pad - notes referred to ‘Mark’ - appellant sought to use notes to prove existence of partner Crown alleged did not exist - appellant claimed evidence admissible because did not intend to assert existence of ‘Mark’ when wrote document therefore assertions unintended.
Held: (Spigelman CJ, Dowd J agreeing) document inadmissible because assertions were irrelevant to facts in issue or intended and therefore excluded as hearsay - raised question of whether s.59 covered unintended assertions and an implied assertion of fact necessarily assumed in an intended express assertion - did not need to decide in context of appeal.
Held: (per Studdert J) - document inadmissible because appellant intended to write what he did and without evidence to contrary cannot infer that appellant did not intend assertion he now seeks to rely upon.

Rose
(2002) 55 NSWLR 701; NSW CCA [455] 19.11.2002
Evidence Act 1995 (NSW) s 59 - murder - appellant claimed he saw estranged wife leave with man in white car - police officer gave evidence he canvassed students from university classes wife attended and no one responded to question as to whether they had ever seen her in company with man in white car - judge found no representation so no hearsay
Held: evidence should not have been admitted - Crown relied upon failure of anyone to respond as evidence there was no relationship between wife and man in white car - no relevance in leading evidence unless to show no relationship - silence can give rise to representation of fact in certain circumstances
 
Salmon
[2012] NSWCCA 119
Evidence Act 1995 s.59 - robbery – no objection made to admission of hearsay evidence at trial
Held: following Gonzales (2007) 178 A Crim R 232 at [21]-[26] and Reid [1999] NSWCCA 258 – phrase ‘is not admissible’ means not admissible if objection made – where no objection evidence not wrongly admitted
 
R v Tabbah; R v Tiriaki (No 1)
[2014] NSWSC 564
Evidence Act 1995 (NSW) s.59 -objection taken to questions sought to be asked of H about a threat made against M on Facebook - H did not say in her statement that she had discussed such a threat with M – H said in her statement was that her daughter P had told her about the threat - objection taken on the basis of relevance and that the evidence was not admissible, because it was hearsay.
Held:
H can give no such evidence. H has not perceived anything about the threat made on Facebook. What H has perceived is concerned with what her daughter P told her about that threat. Such evidence is not admissible under s 66, confined as it is to first-hand hearsay. s 66 is confined to evidence of representations which fall within s 62, that is, first-hand hearsay. The person who made the representation on Facebook is not to be called. It is H’s daughter P who read what was posted on Facebook who is to be called. It was she who made a previous representation about what she read on Facebook. It is she who can give evidence as to what she perceived when she read that message, that being the asserted fact to which s 66(1) makes reference.
 

Lazaris
[2014] NSWCCA 163
Evidence Act 1995 (NSW) s 59 – drug supply – Crown tendered recorded conversations between undercover officer and partner of accused – partner referred to characteristics of supplier that matched accused – no objection taken at trial – whether recording should not have been admitted
Held: following Gonzales (2007) 178 A Crim R 232 at [21]-[26] – 'is not admissible' means not admissible if objection made – where no objection evidence not wrongly admitted

WC
[2015] NSWCCA 52
Evidence Act 1995 (NSW) s 59 – sexual offences – recording of evidence of victim's sister admitted without objection at subsequent trial under s.306I(3)(a)
Held: no error - although section did not apply to evidence of witness hearsay section did not apply because no objection – accepted that 'not admissible' means not admissible over objection

 

Section 60: Exception: evidence relevant for a non-hearsay purpose

Skuse
NSW CCA 24.10.1996
Evidence Act 1995 (NSW) s.60 - sexual assault offences - evidence of complaint.
Held: evidence of complaint, once admitted, is evidence of truth of what is complained of.

Welsh
(1996) 90 A Crim R 364; NSW CCA 6.11.1996
Evidence Act 1995 (NSW) s.60 - murder - expert medical evidence bearing on state of mind of accused - expert’s opinion based on history of accused provided by accused and accused’s mother
Held: evidence of accused’s medical history admissible for non-hearsay purpose of establishing basis for doctor’s opinion - under s.60 statements made to the doctor in course of obtaining history also admissible as evidence of their truth, even though such statements were not otherwise admissible for this purpose under s.72 or common law - s.60 subject to potential exercise of discretion under s.136 to limit use to which evidence may be put if unfairly prejudicial or misleading or confusing

H
(1997) 92 A Crim R 168; NSW CCA 28.2.1997
Evidence Act 1995 (NSW) s.60 - sexual assault - evidence of complaint admitted.
Held: once admitted complaint evidence can be used as evidence of truth of what was said subject to power of judge to limit use under s.136.

BD
(1997) 94 A Crim R 131
Evidence Act 1995 (NSW) s.60 - sexual assault - crown led evidence of complaint made to teacher and doctor.
Held: s.60 makes complaint evidence of truth of what is said in complaint unless limited by s.136.

GAC
NSW CCA 1.4.1997
Evidence Act 1995 (NSW) s.60 – murder - prior inconsistent statement by Crown witness - juvenile accomplice C testified against accused at trial - C professed to have no memory of statement he had previously made to police about the homicide - statement recorded on ERISP.
Held: trial judge correct in granting crown leave to cross-examine own witness - evidence satisfied exclusions to hearsay rule - trial judge took into consideration relevant factors weighing probative value versus unfair prejudice.

Fernando
NSWSC (Abadee J) 4.6.1997
Evidence Act 1995 (NSW) s.60 - admissibility of evidence of Crown witness who had conversation with co-accused prior to offence
Held: leave granted to Crown to cross-examine witness for inconsistent evidence.

Hilder
(1997) 97 A Crim R 70; NSW CCA 10.10.1997
Evidence Act 1995 (NSW) s.60 - armed robbery - appellant’s defence was mental illness - appellant gave no evidence but history he gave to psychiatrist was admitted as part of psychiatrist’s expert evidence.
Held: confirmed Welsh - evidence of history given to doctor admitted for purpose of establishing basis for doctor’s opinion and is evidence of truth of history given - Judge should warn jury that evidence is unsworn and untested and therefore may be unreliable (Lozano NSW CCA 10.6.1997) - Judge does not need to direct jury specifically that history given to doctor can be used as evidence of truth of material it contains.

Singh-bal
(1997) 82 A Crim R 397 (NSW CCA)
Evidence Act 1995 (NSW) s.60 - supply - two police officers gave evidence that appellant had made admission to them - not recorded in notes or raised until trial - evidence from third police officer that two officers had told him appellant made admission - defence accused police officers of fabricating evidence
Held: once evidence admitted to rebut allegation of fabrication it becomes evidence of truth of fact contained (in this case fact that admission had been made) unless use of the evidence is restricted by s.136.

Lee v The Queen
(1998) 195 CLR 594; HCA 30.9.1998; (NSW CCA 5.5.1997)
Evidence Act 1995 (NSW) s.60 - assault with intent to rob whilst armed - witness made statement to police that appellant had confessed crime to him shortly after it was committed - at trial witness denied admission and making of statement - witness declared hostile and statement to police admitted as evidence of prior inconsistent statement - treated as evidence of the truth of confession.
Held: allowing appeal - in prior statement witness only asserting what he saw and heard - not evidence that appellant had actually committed offence - s.60 only applied to assertion that statement was made to police - only purpose of evidence of statement was to show that credibility of witness was affected. 

Adam
(1999) 47 NSWLR 267; NSW CCA [197] 23.7.1999
Evidence Act 1995 - s.60 - murder - Crown witness made statement to police seven weeks after offence that he saw “accused punching V and had something in his hand” - in court witness said he was only reciting what he had been told by others - judge permitted Crown to cross-examine witness on prior inconsistent statement - appellant submitted that no issue of credibility would have arisen if witness had not been called - “other purpose” referred to in s.60 not available to Crown.
Held: no error in permitting cross examination - out of court representations were admissible as evidence of what S had seen or observed - R v Lee (1998) 72 ALJR 1484 applied - word “purpose” in s.60 does not mean subjective purpose of person seeking to adduce evidence - “purpose” refers to use to which evidence, if admitted, would be put, as objectively ascertained.

Peterson

NSW CCA [47] 25.2.2000
Evidence Act 1995 (NSW) s.60 - sentencing.
Held: histories contained in medical reports tendered at sentencing evidence of facts contained in them.

Lawson
NSW CCA [214] 14.6.2000
Evidence Act 1995 (NSW) s.60 - sexual intercourse with child under 10y - evidence of complainant made to medical doctor two months after offence admitted - not evidence of fresh complaint under s.66.
Held: (Dunford & Stein) evidence admissible under s.60 and Welsh as history given to medical practitioner and establishing basis for assumptions of reports - evidence of truth of complaint.
Held: (Sperling in dissent) Welsh should be overruled - evidence should not be admissible as evidence of truth of complaint.

Glasby
[2000] 115 A Crim R 465; NSW CCA [83] 22.6.2000
Evidence Act 1995 (NSW) s.60 - murder - Crown called wife to give evidence against husband - wife claimed husband did not do killing - Crown led contradictory evidence of wife’s statements to police and evidence from her sentence proceedings - included evidence of what wife said appellant had told her about the murder
Held: applying Lee - jury should have been directed that evidence from wife as to what appellant said was not evidence of truth of statements.

Heron
NSW CCA [312] 17.8.2000
Evidence Act 1995 (NSW) s.60 - murder - appellant led evidence of statement made by Crown witness to friend not long after stabbing in pub - told friend he had been holding victim when he was stabbed - led as prior inconsistent statement attacking credibility of witness under s.106.
Held: s.60 means statement was evidence of facts asserted - no basis for trial judge to restrict use of statement to assessment of credibility of witness.

Adam v The Queen
(2001) 207 CLR 96; HCA [57] 11.10.2001
Evidence Act 1995 (NSW) s.60 - murder of off-duty police officer during scuffle outside hotel - Crown witness TS made statements to police supporting crown case - became clear at trial TS would give evidence unfavourable to Crown - judge gave leave under s.38 for Crown to cross examine TS on prior inconsistent statements - Judge also ruled statements could be used as proof of facts asserted.
Held: - (Gleeson CJ, McHugh, Kirby and Hayne JJ) - dismissing appeal - no error in grant of leave pursuant to s.38 - evidence admissible as proof of truth of facts asserted in statement because evidence also relevant to credibility and s.60 exception to hearsay rule applies.

Sing
(2002) 54 NSWLR 31; NSW CCA [20] 13.2.2002
Evidence Act 1995 (NSW) s.60 - DNA evidence - persons who carried out tests not called by prosecution - expert analysis of DNA evidence - whether based on hearsay.
Held: whether or not evidence based on hearsay, evidence prejudicial and excluded under s137.

RTB
NSW CCA [104] 5.4.2002
Evidence Act 1995 (NSW) s.60 – child sexual assault – whether medical history of complainant given by doctor admissible - whether recital should have been admitted only as a basis for opinion and not as evidence of the truth of facts asserted.
Held: only part of complainant’s medical history given by doctor which related to opinion was re penile penetration of anus - evidence went further to encompass "oral genital contact” - this evidence was not basis of opinion, was irrelevant and should not have been admitted.
Held: recital should have been admitted only as basis for opinion and not as evidence of truth of facts asserted - relevance of medical evidence subject to limitations under s 136 – in this case context was important - delay in complaint, uncorroborated complainant’s evidence, doctor not treating doctor - in circumstances recital by doctor of complainant’s medical history will often carry risk of unfair prejudice, where statements are admitted as evidence of truth of facts asserted - it may therefore be appropriate to limit use of such evidence, so that it is received simply as basis for doctor’s opinion

Heatley
NSW CCA [297] 30.7.2002
Evidence Act 1995 (NSW) s.60 - Murder - Crown granted leave to cross-examine witnesses about prior statements - statements contained alleged confessions of accused - jury told they could rely upon prior statements as evidence of truth of what is asserted in statements
Held: followed Lee - directions erroneous - appeal allowed

Rymer
NSW CCA [310] 6.9.2005
Evidence Act 1995 (NSW) s.60, s.66 – sexual assault – admissibility of exculpatory statements of innocence made to police at time of arrest – TJ admitted material pursuant to s.66 on basis accused would give evidence – alleged offences occurred 6 years prior to arrest
Held: evidence not fresh and therefore not admissible pursuant to s.66 – admissible under s.60 as relevant to credibility – evidence should be led by Crown unless some reason not to do so

Aslett
NSW CCA [49] 24.3.2006
Evidence Act 1995 (NSW) s.38, 60, 103 - sexual assault / AR – 4 offender broke into home unit and robbed occupants – 16y daughter sexually assaulted – audiotapes and transcript of two records of interview between accomplice and police admitted – material incriminated appellant – accomplice refused to give evidence at trial - whether material inadmissible
Held: appeal dismissed – followed Adam (2001) 207 CLR 96 – accomplice hostile witness – statement admissible on question of credibility and contents available to prove truth of assertions

Klein
[2007] NSW CCA 206
Evidence Act 1995 (NSW) – s.60 - murder – Crown witness claimed accused made admission to murder in induced statement – affirmed evidence at committal – claimed at trial evidence was a lie – cross-examined under s.38 – directions to jury as to use to be made of evidence
Held: appeal allowed – Lee followed – directions to jury should have confined use of prior inconsistent statements to credibility of witness – directions suggested evidence constituted proof of admission 

Tan
[2008] NSW CCA 332, 19.12.2008
Evidence Act 1995 (NSW) s 60 – discharge firearm in public place – organized drive-by shooting – Crown relied upon evidence of driver of car – gave record of interview to police incriminating appellant – claimed no memory of events in witness box – declared hostile under s.38
Held: Record of interview did not contain confessional material similar to that disallowed in Lee 

Hunter
[2009] NSWDC 237, Berman SC DCJ, 10.9.2009
Evidence Act 1995 (NSW) s 60 – considered admissibility of ERISP with unfavourable witness – portion of ERISP contain account of admissions made by accused to witness
Held: portion containing admissions not admissible – second hand hearsay under Lee – distinguished Tan and Suteski – admissions there not relied upon as truth of what was said 

Col
[2013] NSWCCA 302
Evidence Act 1995 (NSW) s.103 – cause grievous bodily harm with intent – alleged to have set fire to victim – victim retracted initial statement to police – cross-examined under s.38 – initial statement to police and retraction both admitted as evidence at trial – whether material should not have been admitted
Held: Appeal dismissed – material admissible under s.103 – adduced by Crown in cross-examination and substantially affected victim’s credibility – admissible under s.106 as prior inconsistent statement – once admitted became evidence of facts contained in representation under s.60 – no prejudice under s.137 given clear and unambiguous content of statement – not rendered inadmissible under s.43(2)

Hunter (No.2)
[2013] NSWSC 1806 Johnson J
Evidence Act 1995 (NSW)– murder – brother made three statements to police on separate occasions – first statements exculpatory – third statement inculpated accused and brother – contained admission by accused – witness since deceased
Held: evidence allowed – no hearsay – Lee distinguished

 


 

Division 2: ‘First-hand’ hearsay

Section 62: Restriction to “first-hand” hearsay

Eastman

ACT SC (Carruthers AJ) 10.8.1995; (1995) 2 Crim LN 88
Evidence Act 1995 (Cth) ss.62(1),(2) & 65 - murder of police commissioner - Crown case that accused purchased weapon used in killing from private vendor - vendor deceased - Crown sought to lead evidence of account given by vendor to Crown witness that a man interested in buying gun said he was Canberra and was coming back to purchase it.
Held: evidence inadmissible - statement made by vendor not included in previous representation exception - vendor had no personal knowledge of facts asserted in statement because based on representation made by another person.

Privett
NSWSC [1075] Badgery-Parker J 3.8.1999
Evidence Act 1995 (NSW) s.62, 65 - murder - admissibility of statement of V to friend that he feared for his life from two brothers because they thought he had given their brother AIDS.
Held: evidence inadmissible - nature of comment suggested that V heard it from someone else - not firsthand hearsay.

Vincent
(2002) 133 A Crim R 206; NSW CCA [369] 6.9.2002
Evidence Act 1995 (NSW) s.62 - hearsay identification - whether "first hand" hearsay
Held: various facts made it more probable than not that woman was asserting something that she had observed - appeal dismissed.


 

Section 65: Exception: Criminal proceedings if maker not available


Eastman
ACT SC (Carruthers AJ) 10.8.1995; (1995) 2 Crim LN 88
Evidence Act 1995 (Cth) ss.62(1),(2) & 65 - murder of police commissioner - Crown case that accused purchased weapon used in killing from private vendor - vendor deceased - Crown sought to lead evidence of account given by vendor to Crown witness that a man interested in buying gun said he was Canberra and was coming back to purchase it.
Held: evidence inadmissible - statement made by vendor not included in previous representation exception - vendor had no personal knowledge of facts asserted in statement because based on representation made by another person.

Souleyman
NSWSC (Smart J) 23 and 24.5.1996
Evidence Act 1995 (NSW) s.65 - tender of police interview
Held: discussion of s.65 - consideration of terms of questions and answers in interview - whether against interest within s 65(1), (7) and (8) - tender rejected as whole subject to admission of answers against interest.

Mrish
NSWSC (Hidden J) 4.10.1996
Evidence Act 1995 (NSW) s.65(8) & (9) - murder - accused permitted to tender statement of deceased witness to police exculpating accused - Crown sought to tender another statement by deceased witness inculpating accused.
Held: s.65(2) applies only to the tender of hearsay evidence by Crown in its case in chief - does not apply where led in response to hearsay evidence tendered by accused - hearsay evidence led by accused under s.65(8) and crown under s65(9) equally unrestricted - R v Souleyman (SC(NSW), Smart J, 24 May 1996) referred to.

Dean (No. 1)
NSWSC (Dunford J) 12.3.1997 (ex-tempore)
Evidence Act 1995 (NSW) s.65 - murder trial - objection by accused to (incriminating) hearsay evidence sought to be led by Crown pursuant to ss.65(2)(b) & (c) - informal notice given by DPP - s 67 notice rule not pressed.
Held evidence admissible under s 65(2)(c) - highly probable that representation is reliable

Fernando
NSWSC (Abadee J) 19.5.1997
Evidence Act 1995 (NSW) s.65 - question of competency of witness to give hearsay evidence - expert testimony adduced from specialist doctor concerning competency of witness
Held: witness competent to testify under s.65.

Mankotia
NSWSC (Sperling J) 27.7.1998
Evidence Act 1995 (NSW) s 65(2)(b), 65(9) - murder of girlfriend - Crown sought to lead evidence from friends and acquaintances of deceased that she had told them relationship was having difficulties and that accused had threatened to kill her - Crown anticipated accused would give evidence that deceased had agreed to marry him
Held: s65(2)(b) - when considering whether representation was made “shortly after” Judge must consider actual time and subject matter of representation.
Held: s65(2)(b) (c) - “in circumstances that make it unlikely that the representation is a fabrication...” refers to factual setting at time representation was made - does not include subsequent events - disagreed on this point with Dean (see above) and Lock - this also applies to s.65(2)(c).
Held: s65(9) - not necessary to decide if wide or narrow view of “the matter” should be applied - in this case accused was to give evidence that deceased had agreed to marry him - this allowed wide scope for evidence of deceased’s view of relationship.

Brownlee
(1999) 105 A Crim R 214; NSW CCA [57] 8.3.1999
Evidence Act 1995 (NSW) s.65 & 66 - financial offences - Crown permitted to tender evidence of conversation between Crown witness and third person in absence of appellant - third person made statement inculpating appellant - third person did not give evidence.
Held: statement not admissible under either s.65 or s.66 - no evidence maker of statement not available to give evidence under s.65 - maker not available under s.66 because not called to give evidence

Polkinghorne
(1999) 108 A Crim R 189; NSWSC [704] (Levine J) 13.7.1999
Evidence Act 1995 (NSW) s 65(2)(b) (c)- murder of de facto - victim stabbed in her bed - shortly after stabbing went to mother’s house and told her accused did it
Held: evidence admissible under both s65(2)(b) and (c) - ‘circumstances’ in both s65(2)(b) and (c) refer to circumstances of making of representation, not events referred to in representation - affirmed Mankotia.
Held: term ‘fabrication’ in s 65(2)(b) has ordinary English meaning of ‘made up’.

Privett
NSWSC [1075] (Badgery-Parker J) 3.8.1999
Evidence Act 1995 (NSW) s.62, 65 - murder - admissibility of statement of V to friend that he feared for his life from two brothers because they thought he had given their brother AIDS.
Held: evidence inadmissible - nature of comment suggested that V heard it from someone else - not firsthand hearsay.

Jang
NSWSC [1040] (Bell J) 21.10.1999
Evidence Act 1995 (NSW) s 65(2)(c) - murder of wife and daughter - Crown sought to lead evidence of statements of deceased as to death threats made by accused - statements made to hospital staff and social workers - statements also made to deceased’s children
Held: statements made to social workers and hospital staff not admissible because not reliable - in martial disputes false accusations often made - statements made to children admissible.

Serratore
(1999) 48 NSWLR 101; NSW CCA [377] 26.11.1999
Evidence Act 1995 (NSW) s 65(2)(c) - murder of girlfriend - Crown led evidence of statements deceased made to mother and friends as to obsessive and violent nature of relationship with appellant
Held: evidence admissible.

Conway v The Queen
Fed Ct. [461] 11.4.2000
Evidence Act 1995 (Cth) s.65(2)(b) & (c): murder of wife - arranged for co-offenders to kill wife by heroin overdose - Crown led evidence that appellant had put heroin in V’s coffee cup week before murder - evidence came from statements made by V to neighbour, friend and police officer - evidence also led of diary entry by V recounting incident - inference that heroin put in coffee cup to make it look like V used heroin - attempting to make death look like suicide.
Held: dismissing appeal - evidence of statements made by V admissible under s.65(2)(b) - affirmed Mankoita and Pollkinghorne in relation to requirement representation be made “shortly after” event and unlikelihood that “representation is a fabrication” - test of reliability lower than test under s.65(2)(c)
Held: judge erred in admitting evidence of V’s statements under s.65(2)(c) - at time of making statement V plainly confused and possibly still disorientated - not “highly probable” that representation “reliable” - disagreed with Mankotia - can consider other inconsistent statements when assessing reliability of representation.
Held: evidence of diary entry inadmissible - under s.65(2) evidence must be given by witness who “saw, heard or otherwise perceived” making of representation - not sufficient that witness read entry in V’s presence - only admissible if saw V make entry

Gover
[2000] 118 A Crim R 8; NSW CCA [303] 17.8.2000
Evidence Act 1995 (NSW) s.65 - stealing offences - two statements of Crown witness admitted at committal in absence of appellant - witness died before trial - statements tendered pursuant to s.409 Crimes Act (now ss.112-116 Criminal Procedure Act 1986).
Held: statements admissible - s.65 does not impliedly repeal s.409 and statements admissible under s.409 - statements also admissible under s.65 - witness is unavailable if dead

Toki (No. 3)
(2000) 116 A Crim R 536; NSWSC (Howie J) [999] 25.10.2000
Evidence Act 1995 (NSW) s.65(2)(b) - murder of de facto wife - Crown sought to lead evidence of prior injuries inflicted by accused on V - evidence of injuries observed by friends of V - evidence of statements made by V that injuries inflicted by accused.
Held: allowing some evidence - when considering whether representation reliable consider whether person making representation has made other inconsistent representations.

Hemmelstein
NSW CCA [220] 6.6.2001
Evidence Act 1995 (NSW) s.65 - importation of drugs - cocaine found in appellant’s golf bag brought in on plane - appellant maintained came to Australia to play golf and did not know about drugs - claimed bag belonged to friend - Judge refuse to admit evidence from appellant’s solicitor of conversations with appellant’s friend hinting that friend had put drugs in bag - also refused to admit evidence of telephone call received by appellant’s brother from unknown person claiming appellant innocent.
Held: appeal dismissed - (per Smart J dissenting) evidence was admissible although would require warning under s 165 – s.65(8) recognises that accused persons may not have the resources to get a witness to court or witness may be unwilling (especially where evidence amounts to a confession).
(per Hulme J) - evidence of third party confession admissible but in this case evidence too vague.
(per Meagher J) - evidence vague and not relevant to accused’s knowledge of drugs.

Patterson v R (Cth)
NSW CCA [316] 12.7.2001
Evidence Act 1995 (NSW) s.65 - importation of cannabis resin - federal agent present at time of arrest stationed overseas at time of trial
Held: Crown need only satisfy requirements of s.112 Criminal Procedure Act - do not have to also comply with s.65 Evidence Act.

McIntyre
NSW CCA [29] 15.2.2002
Evidence Act 1995 (NSW) s.65 - murder of 14y boy - body of deceased sexually mutilated - evidence by deceased’s mother of conversation between herself and deceased that appellant had made sexual suggestion to deceased - whether conversation evidence of relationship between deceased and appellant - whether relevant to proving appellant murdered deceased
Held: conversation admissible.

Vincent
(2002) 133 A Crim R 206; NSW CCA [369] 6.9.2002
Evidence Act 1995 (NSW) s.65 - robbery with corporal violence - robbed chemist - victim followed offender outside and was given number plate of escaping van by female passer-by - female unable to be found - evidence admitted
Held: TJ entitled in circumstances of case to conclude female was giving account of something she had seen - TJ entitled to conclude representation made in circumstances where unlikely to be a fabrication and highly probable it was reliable

Ambrosoli
(2002) 55 NSWLR 603; (2002) 133 A Crim R 461; NSW CCA [386] 30.9.2002
Evidence Act 1995 (NSW) s.65 - malicious wounding - Crown tendered statement of witness to police admitted at committal as well as transcript of cross-examination of witness at committal - Whether evidence should have been admitted under s.65(2)(c) or s.65(3)
Held: discussion as to the narrow and broad interpretation of what amounts to “circumstances” in s.65(2)(c) - accepted narrow interpretation which looks only at reliability of making of representation not reliability of asserted fact in representation (followed Mankotia NSWSC (Sperling J) 27.7.1998) - such an assessment, however, can take into account all circumstances which touch on credibility of person making representation - this may include other consistent or inconsistent statements by person making representation (following Conway (2000) 98 FCR 204 and Williams (2000) 119 A Crim R 490 in preference to more narrow interpretation of Sperling in Mankotia) - in this case judge entitled to take into account material disclosed in cross-examination of maker at committal - judge not entitled to find statement made in circumstances that made it highly probable representation was reliable
Held: s.48A Justices Act made written statement tendered at committal evidence as if it were oral evidence - although witness was called for cross-examination under s.48E statement had already been tendered and was in evidence - statement admissible at trial pursuant to s.65(3)

Suteski
(2002) 56 NSWLR 182; 137 A Crim R 371; NSW CCA [509] 20.12.2002
Evidence Act 1995 (NSW) s.65(2)(d) - murder - female accused arranged for bashing of employer - employer stabbed to death - killer gave evidence against accused - second person, S, convicted of procuring someone to commit gbh but refused to give evidence - Crown sought to tender ERISP of S upon basis that S was "unavailable to give evidence" within s 65 - whether TJ erred in admitting into evidence representations made in ERISP by S as evidence of truth of facts asserted
Held: S out of court representations in ERISP admissible under s 65(2)(d) - any statement made by S, which tended to implicate himself in a joint criminal enterprise with appellant, admissible as a representation against interest.

Sleiman

[2003] NSWCCA 231, 21.8.2003
Evidence Act 1995 (NSW) s.65(2)(b), (c) – stabbing murder – s 108 enabled Crown to adduce evidence of police officer’s recorded conversation (ie. other than oral evidence) as relevant corroborative evidence
Held: Evidence of dying declaration admissible as exception to hearsay rule: s 65(2)(b) and (c).


Kazzi, Williams & Murchie
(2003) 140 A Crim R 545; NSW CCA [241] 28.8.2003
Evidence Act 1995 (NSW) s.65 – armed robbery – complainant left Australia and returned to India shortly after offence committed – no information as to whereabouts in India – police did not commence inquiries until shortly before trial
Held: statement of complainant admissible at trial – delay does not constitute failure to take reasonable steps where earlier inquiries would have produced similar results – not incumbent on police to make inquiries in India in circumstances of case – insufficient evidence to support concern as to inability of complainant to speak English

AJW v State of NSW
NSWSC [803] (Bell J) 5.9.2003
Evidence Act 1995 (NSW) s.63 – civil case involving application by plaintiffs to adduce evidence of statements made by younger daughter – contact with younger daughter lost – private investigator unable to locate younger daughter
Held: all reasonable steps taken to locate witness – witness not available to give evidence
 
O’Connor
NSW CCA [335] 5.11.2003
Evidence Act 1995 (NSW) s.65(2), (8) - robbery in company – exculpatory out-of-court statement of absent co-offender overseas - TJ rejected evidence that co-offender told police he had committed offence with another person
Held: no miscarriage of justice - appeal dismissed.

Elms
NSW CCA [467] 20.12.2004
Evidence Act 1995 (NSW) s.65(8) – Aggravated break, enter and steal - occupant claimed he and friend arrived home to find appellant in house removing property – appellant claimed assaulted by occupant when attended house seeking to buy marijuana – significant discrepancies between statement of occupant’s friend to police and evidence of occupant - friend unavailable for trial – defence sought to tender statement of friend to police – no notice given under s.67 – trial judge mistakenly considered question of admissibility under s.65(2) – failed to consider application of s.65(8) and discretion of court to dispense with notice under s.67(4)
Held: appeal allowed and new trial ordered. - statement should clearly have been admitted at trial – statement made to police and part of police investigation

Kuzmanovic
[2005] NSWSC 771, Miles AJ, 3.8.2005
Evidence Act 1995 (NSW) s 65(2)(b) or (c) – murder – admissibility of police statement made by witness now deceased – statement made 14 days after events – evidence that deceased had told witness he intended to travel to Canberra – body found on road to Canberra – statement otherwise admissible – whether statement made ‘shortly after’ events – whether made in circumstances such as to make fabrication unlikely
Held: s.65(2)(b) - reviewed relevant cases - fabrication includes “reconstruction falling short of a false invention yet not entirely free of a process of piecing together discrete items of memory” - section requires statement be made “at a time so soon after the event that the lapse in time itself is not likely to give rise to fabrication” – consider subject matter of event and how long memory likely to remain clear – in circumstances of case evidence admissible
Held: s.65(2)(c) – evidence not admissible under this section – much higher standard

Taber and Styman
[2005] NSWSC 1035, Studdert J, 13.10.2005
Evidence Act 1995 (NSW) s 65(3), s.67, s.137 – manslaughter – retrial – third offender gave evidence at previous trial inculpating accused – reused to give evidence at retrial – whether transcript of evidence at previous trial should be admitted
Held: witness ‘unavailable’ pursuant to Dictionary Part 2 Cl 4(1)(f) (see also Suteski (2002) 56 NSWLR 182 at 195) – previous evidence amounts to previous representation under s.65(3) – both accused took opportunity to cross-examine witness at previous trial – requirement to give notice under s.67 fulfilled – s.137 considered – evidence admitted 

Harris
[2005] NSW CCA 432, 14.12.2005; (2005) 158 A Crim R 454
Evidence Act 1995 (NSW) s 65(2)(b) – manslaughter – admissibility of statement made to police by deceased 24 hours after fatal assault – whether statement made “shortly after” event – whether statement made in circumstances such as to make fabrication unlikely
Held: s.65(2)(b) - reviewed relevant cases as to what constituted “shortly after” – no error in finding statement made “shortly after” in circumstances of case – no error in finding fabrication unlikely 

Brown, Barwick and Brown
NSW CCA [69] 22.3.2006
Evidence Act 1995 (NSW) s.65(2)(b) & (c) – mal wounding – complainant found severely bashed – at time of trial no memory of assault – named accused as assailants to sister and other witnesses on two occasions shortly after assault – Crown sought to led evidence from other witnesses as to complainant’s statements - trial judge ruled complainant unavailable at trial pursuant to s.13 due to lack of recollection – allowed statements on basis nothing to persuade her statements likely to be fabricated or unreliable
Held: trial judge erred – s.13 does not apply to lack of recollection or memory – complainant was available – also reversal of proof in applying test under s.65(2)(b) and (c) – concluded nothing to persuade her statements likely to be fabricated or unreliable – test requires positive conclusion – whether circumstances exist that make it highly unlikely statements fabricated – whether circumstances exist making it highly probable statements reliable – despite errors evidence admissible under s.66 

Vickers
[2006] NSW CCA [60], 160 A Crim R 195
Evidence Act 1995 (NSW) s.65(2)(b) & (c) – assault offences – appellant assaulted two males in toilets at club – claimed acted in self defence – witness made statement containing admissions by accused suggesting provocation – witness not available at trial – statement to police read out – whether evidence of appellant’s admissions admissible
Held: appeal dismissed – evidence of admissions constituted impermissible second hand hearsay – Followed Lee – evidence of little significance – no miscarriage of justice 

Lodhi
[2006] NSWSC 648, Whealy J, 163 A Crim R 526
Evidence Act 1995 (NSW) s.65 – terrorism offences – Crown relied upon link between accused and known terrorist B – claimed accused visited B at his residence – evidence from persons present at residence as to statement made by male visiting B – whether statement admissible as admission made by accused – insufficient evidence apart from statement establishing male was accused
Held: if statement made by accused maker not available - followed Ambrosoli – no evidence to establish statement made in circumstances making reliability highly probable – also insufficient evidence establishing statement made by accused 

Taber and Styman
[2007] NSW CCA 116, 26.4.2007; (2007) 170 A Crim R 427
Evidence Act 1995 (NSW) s 65 – manslaughter – retrial – third offender gave evidence at previous trial inculpating accused – reused to give evidence at retrial – whether transcript of evidence at previous trial should be admitted
Held: no error in applying s.65 to evidence of co-offender – no error in admitting evidence under s.65 

Puchalski
[2007] NSW CCA 220, 23.7.2007
Evidence Act 1995 (NSW) s 65 – Malicious shooting with intent to do GBH - Committal evidence of subpoenaed witness who went overseas very shortly before trial without notifying Crown or police – whether committal evidence correctly admitted at trial under s 65 - construction of "not available to give evidence" in s 65(1) and "all reasonable steps" in cl 4(1)(e) of Pt 2 of Dictionary.
Held: The witness had been served with a subpoena well in advance of trial. The Crown had taken “all reasonable steps” to secure the witness’ attendance. The evidence was properly admitted. 

Morton
[2008] NSW CCA 196, 11.8.2008; (2008) 191 A Crim R 333
Evidence Act 1995 (NSW) s 65 – robbery – French national robbed at bus stop – gave statement to police using friend as interpreter – signed statement – refused to return from France to give evidence – admissibility of statement
Held: trial judge erred in refusing to admit evidence – failed to properly consider how use of friend to translate could affect reliability and accuracy of statement – made test too high – required crown prove no risk of fabrication or unreliability – statement not hearsay

Tan
[2008] NSW CCA 332, 19.12.2008; (2008) 192 A Crim R 310
Evidence Act 1995 (NSW) s 65 – discharge firearm in public place – organized drive-by shooting – Crown relied upon evidence of driver of car – gave record of interview to police incriminating appellant – claimed no memory of events in witness box – declared hostile under s.38 – also declared unavailable under s.65 – applied definition of cl 4(1)(f) Part 2 of Dictionary
Held: trial judge erred in finding witness unavailable – circumstances different Sutseski – in Suteski witness refused to give evidence – in this case witness entered witness box and responded to questions although claims to lack of memory found to be a lie by TJ – circumstances of case dealt with under s.38
[57] Had Lenati entered the witness box but refused to answer any questions at all upon pain of being held in contempt, then clearly reasonable steps would have been taken to compel him to give evidence but without success. It seems to me that that is the type of situation to which cl 4(1)(f) is directed: see Suteski. But in my view it is not directed to a situation such as the present where a person enters the witness box, is prepared to respond to questions but does so in an allegedly untruthful manner by claiming lack of recollection or loss of memory (not due to s 13 incompetency). Those circumstances more aptly fall within s 38(1)(b) as clearly Lenati was a witness who was reasonably supposed to have knowledge of the drive-by shooting but did not, in examination in chief, make a genuine attempt to respond to the questions asked of him. 

El Masri
[2010] NSWSC 1277, Hoeben J, 5.11.2010
Evidence Act 1995 (NSW) s 65 – murder – girlfriend of Accused gave statement to police after offence – subsequently gave induced and contradictory statement to police – refused to give evidence and went to Lebanon – admissibility of second statement at trial
Held: witness unavailable – all reasonable steps taken to secure attendance
Held: s.65(2)(d)(i) – second statement made against interest because contradictory or earlier statement – tended to damage witness’ reputation (s.65(7)(a)) and tended to show witness had committed an offence (s.65 (7)(b)
Held: reliability of statement under s.65(2)(d)(ii) cannot be established by matters corroborating truth of what was contained in statement – must be circumstances of the making of the statement – induced nature of statement makes it reliable – warning under s.165(1)(d) as to the potential unreliability of accomplices does not apply to accessories after the fact
Held: fact that statement untested by cross-examination only an issue under ss.135 and 136 

B.O.
[2012] NSWDC 195, Haesler SC DCJ
Evidence Act 1995 (NSW) s.65 – manslaughter – accused of killing 11m child of de facto partner – 7y and 11y sons of accused called to give evidence against father – trial judge ruled children not to give evidence under s.18 – whether recorded interview with police admissible under s.65
Held – although ruling under s.18 means children not available does not mean evidence admissible – a.18 still operates on pre-recorded evidence – in this case admission of interviews raises likelihood of damaging relationship – evidence ruled not admissible 

Maglovski
[2013] NSWSC 1378, Beech-Jones J
Evidence Act 1995 (NSW) s.65 – murder – husband accused of killing wife – claimed acted under provocation – Crown sought to lead evidence from daughter that mother had told her accused had tried to strangle her in her sleep – response to question as to why father sleeping in different bedroom
Held – not admissible under (2)(b) – three months between event and recount too great – admissible under (2)(c) – more onerous test than (b) – concept of reliability more onerous than fabrication – circumstances to consider include relationship between maker and receiver of statement (mother and daughter) – in circumstances of case satisfied reliable – excluded under s.137 

Grogan (No. 3)
[2013] NSWSC 1198, RA Hulme J
Evidence Act 1995 (NSW) s. 65 – murder - criminal - maker unavailable hearsay - evidence from deceased of threats made by A - substantial gap in time between threats and alleged assault – whether probative value outweighed by danger of unfair prejudice – whether evidence inadmissible - evidence of animosity between deceased and A - evidence of items in disarray at scene of alleged assault – whether both items of evidence admissible.
Held: 1. Evidence of deceased reporting threats by A inadmissible. 2. Evidence of representation made by deceased that A not welcome at his home admissible. 3. Evidence of representations made by late brother of deceased as to state of deceased's house admissible. Cited:- Shamouil [2006] NSWCCA 112; 66 NSWLR 228. 

Grogan & Slacke (No. 1)
[2013] NSWSC 1191, RA Hulme J
Evidence Act 1995 (NSW) s. 65 – murder - maker unavailable hearsay - victim of alleged assault made statements to others some five weeks after attack after recovering from coma - victim later died - whether "shortly after" occurrence of asserted fact - whether ambiguity of statement that victim "bashed" unfairly prejudicial where maker unavailable for cross-examination.
Held: 1. Evidence of V saying that he had been bashed must be excluded. 2. Any subsequent conversations in which V made similar assertions, are excluded. ([15]-[17] Bash" is an emotive term and minds may differ as to the level of violence it connotes. What level of violence V intended to convey by his use of the term is unknown and impossible to know. Hearing evidence that the victim of the assault claimed that he was "bashed" would almost inevitably lead the jury to conclude that the level of violence was considerable and that the level of harm intended was also considerable.)
“[11] My attention was invited to a number of authorities dealing with the construction of s 65(2)(b) and (c) such as Williams (2000) 119 A Crim R 490; Harris [2005] NSWCCA 432; (2005) 158 A Crim R 454; and Kuzmanovic [2005] NSWSC 771. They do not all speak with one voice; that is, the proper construction of the provisions is not well settled.” 

Sio
[2013] NSWSC 1412, Adamson J
Evidence Act 1995 (NSW) s. 65 – murder – Crown case was that S arranged for F to rob brothel manager – manager fatally stabbed by F – F made admissions in ROI and statements to police – refused to give evidence - unavailable – whether ROI and statements should be admitted
Held: evidence admitted under s.65(2)(d) – not role of trial judge to assess credibility of witness (Shamouil and XY) – review of circumstances of the making of the ROI and statements make it likely representation reliable 

Basanovic (No 4)
[2015] NSWSC 1100 (Davies J)
Evidence Act 1995 (NSW) s 65(2), s 137 - hearsay evidence – unfair prejudice – witness J examined by Crime Commission – witness J overseas at trial – whether witness J unavailable – whether reasonable steps taken to secure attendance – steps first taken three days before trial to commence – no explanation for delay – witness in Australia in weeks leading up to trial – whether probative value of evidence outweighed by unfair prejudice – no notice given to rely on hearsay evidence.
Held: Tender of evidence of transcript of witness J rejected.  Sections 65(2)(a), (c) and (d) are made out. J cannot be considered to be a person who is not available to give evidence because the Crown has not demonstrated that all reasonable steps have been taken to secure his attendance: at [23]; Kazzi [2003] NSWCCA 241; (2003) 140 A Crim R 545 referred to.
Unfair prejudice to A by the admission of this evidence and that danger outweighs the probative value of the evidence. Accused will not have opportunity to cross-examine J to test his evidence about what MB is alleged to have told him. That is a significant prejudice because it would mean the jury had before it J's untested evidence of what he claims MB told him. Crown would then use that evidence of J's to point to inconsistencies in what it is believed MB will say if he gives evidence as seems likely. Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; BD (1997) 94 A Crim R 131; Papakosmos [1999] HCA 37; (1999) 196 CLR 297

   

Section 66: Exception: Criminal proceedings if maker available

Mrish
NSWSC (Hidden J) 4.10.1996
Evidence Act 1995 (NSW) s.66 - murder - Crown sought to tender written instructions made by deceased witness to solicitor - instructions not written in presence of solicitor.
Held: not admissible because solicitor did not observe instructions being made - s.66 only permits witness to give evidence of representation made by another where witness has seen, heard or otherwise perceived representation being made.

GAC
NSW CCA 1.4.1997
Evidence Act 1995 (NSW) s.66 – murder - juvenile accomplice testified against accused at trial - accomplice professed no memory of statement made to police - statement recorded on ERISP.
Held: trial judge correct in granting crown leave to cross-examine own witness - evidence satisfied exclusions to hearsay rule - trial judge took into consideration relevant factors weighing probative value versus unfair prejudice.

H
(1997) 92 A Crim R 168
Evidence Act 1995 (NSW) s.66 - sexual assault - admissibility of evidence of complaint
Held: under s 102 evidence of a complaint by a sexual assault victim is inadmissible if relevant only to witness’s credibility - where evidence is admissible as “first hand” hearsay under s.66 s.102 has no application and evidence may be adduced as evidence of truth of what was said, subject to power of trial judge to limit use of evidence under s.135 or s.36
Held: what qualifies as “fresh in the memory” should be flexible test not requiring strict contemporaneity

BD
(1997) 94 A Crim R 131
Evidence Act 1995 (NSW) s.66 sexual assault - crown led evidence of complaint made to teacher and doctor.
Held: complaint admissible under s.66 as first hand hearsay and is evidence of truth of what is asserted - although trial judge has discretion to limit use of evidence under s.136 this should not usually be done - judge should only exercise discretion if nature of complaint is so unreliable that it cannot be dealt with by warning given under s.165.
Held: (Smart J) agreed with Hunt CJ at CL in relation to admission and use of complaint evidence under s.66 - to use complaint evidence as evidence of truth of facts contained within is prejudicial to accused and should normally be restricted under s.136.

Papakosmas
NSW CCA 10.12.1997
Evidence Act 1995 (NSW) s.66 - sexual assault by boss on employee at office party
Held: following BD - exercise of s.136 discretion will depend upon particular circumstances in which the complaint was made.

Crisologo
(1997) 99 A Crim R 178; NSW CCA 12.12.1997
Evidence Act 1995 (NSW) s.66 - sexual assault - trial judge rejected evidence from mother and wife of accused of exculpatory account accused gave to them of offence two days after offence alleged to have occurred - account given to mother identical to accused’s evidence at trial
Held: evidence should have been allowed under s.66 - principles that apply to complaint evidence apply equally to evidence of account given by accused

Diamond
NSW CCA 19.6.1998
Evidence Act 1995 (NSW) s.66 - prison stabbing - trial judge rejected evidence of another prisoner who claimed victim told him, prior to attack, he was worried about some prisoners, was friendly with accused and was glad to have accused to “back him up”.
Held: evidence was admissible under s.66 - evidence went to more than credit of victim - demonstrated friendship between accused and victim and suggested there were other people with reason to attack victim.

Graham v The Queen
(1998) 195 CLR 606; 72 ALJR 1491; HCA 30.9.1998
Evidence Act 1995 (NSW) s.66 - sexual assault offences on daughter - complaint made six years later and opportunity to complain earlier not taken - made in response to conversation with friends
Held: (per Gaudron, Gummow & Hayne JJ) core of test for ‘fresh’ is temporal relationship between asserted fact and making of complaint - “Although questions of fact and degree may arise, temporal relationship required will very likely be measured in hours or days, not ... in years”
Held: (per Callinan J, Gleeson CJ concurring) - “Whilst it cannot be doubted that the quality of vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaneity, or otherwise, will almost always be the most important consideration in any assessment of its freshness” - cases involving complaint made relatively remote in time “will necessarily be rare and requiring of some special circumstance or feature”
Held: complaint evidence did not meet freshness requirement - appeal allowed


Esposito
(1999) 105 A Crim R 27; NSW CCA 20.11.1998;
Evidence Act 1995 (NSW) s.66(3) murder - person with accused at time of murder made statement to independent witness and police - Crown led evidence from police officer of both statements.
Held: statements should not have been admitted - witness made it clear he was giving statements for purpose of use in future trial - this does not prevent examination or cross examination of prior statement if done properly under s.38 or s.108.
Held: (per Adams J) relevant intention is that of witness giving statement - intention of police taking statement may not be sufficient.

Gillard
(1999) 105 A Crim R 479; NSWCCA [21] 5.3.1999
Evidence Act 1995 (NSW) s.66 - admission of evidence of complaint of sexual assault made 12 months after alleged offence.
Held: complaint not admissible because not fresh.

Brownlee
(1999) 105 A Crim R 214; NSW CCA 8.3.1999
Evidence Act 1995 (NSW) s.65 & 66 - financial offences - Crown permitted to tender evidence of conversation between Crown witness and third person in absence of appellant - third person made statement inculpating appellant - third person did not give evidence.
Held: statement not admissible under either s.65 or s.66 - no evidence maker of statement not available to give evidence under s.65 - maker not available under s.66 because not called to give evidence

Dwyer
NSW CCA [47] 25.3.1999
Evidence Act 1995 (NSW) - s.66 - child sexual assault - 6y delay in complaint - complaint evidence admitted at trial
Held: complaint not fresh and therefore not admissible.

Papakosmas
(1999) 196 CLR 297
Evidence Act 1995 (NSW) s.66: - immediate complaint of sexual assault to three persons.
Held: no error in admission of evidence - no error in directing jury evidence of complaint was evidence of fact that incident took place - confirmed BD - in determining whether out of court statement, admitted to prove truth of its contents, is relevant, consideration to be given to circumstances in which it is made.
 
Adam
(1999) 47 NSWLR 267; NSW CCA [197] 23.7.1999
Evidence Act 1995 (NSW)- s.66 - murder - Crown witness made statement to police 7 weeks after incident that he saw “accused punching V and had something in his hand” - evidence in court was that he was only reciting what he had been told by others. As alternative to s.60 Crown relied upon s.66 as exception to hearsay rule.
Held: statement made 7 weeks after an event is still fresh and therefore admissible

Le
NSW CCA [49] 7.3.2000
Evidence Act 1995 (NSW) s.66 - multiple sexual and physical assaults upon de facto and her two children over period of months - crown relied upon evidence of complaint made by daughter to police officer acting as victim support person - whether complaint ‘fresh’ under s.66.
Held: despite fact that some incidents referred to in complaint dated back as far as six months complaint fresh and evidence admissible in circumstances of case - describing six month continuum characterised by outbursts of physical violence and grossly aberrant sexual behaviour - constant refreshing effect of regular repetition of offensive behaviour.
Held: (per Hulme) complaint evidence not admissible where refers to conduct dating further back than two months prior to making of complaint.

AJL
NSW CCA [104] 12.4.2000
Evidence Act 1995 (NSW) s.66 - sexual offences - Crown conceded 16 month delay in making of complaint meant evidence not fresh - argued leave would have been granted pursuant to s.108.
Held: allowing appeal - not clear leave would have been granted pursuant to s.108.

Barbaro & Rovere
[2000] 112 A Crim R 551; NSW CCA [192] 26.5.2000
Evidence Act 1995 (NSW) s.66(2) - cultivate cannabis - witness at trial sought to recant evidence of identification - evidence admitted from police officers as to identification process and fact that witness identified appellants from photographs.
Held: allowing appeal - Evidence Act changes common law in relation to this matter - evidence of police not admissible under s.59 or s.66(2).

Gee
[2000] 113 A Crim R 376; NSW CCA [198] 26.5.2000
Evidence Act 1995 (NSW) s.66 - armed robbery - Crown called family members to give evidence they recognised appellant in security camera photos - witnesses claimed unsure in evidence - Crown permitted to lead evidence from police that each witness had previously positively recognised appellant.
Held: (per Grove J, Spigelman CJ agreeing) - evidence admissible - recognition different to identification - recognition is fresh because of continuing familiarity with features of person depicted - for act of identification to be admissible formation of image must be fresh.

HJS
NSW CCA [205] 9.6.2000
Evidence Act 1995 (NSW) s.66 - evidence of complaint wrongly admitted - not ‘fresh in memory’
Held: fact that evidence admissible under s.108(3) does not cure irregular admission of evidence under s.66.

Lawson
NSW CCA [214] 14.6.2000
Evidence Act 1995 (NSW) s.66 - evidence of complaint made to neighbour on day of sexual assault - complaint also made to medical doctor two months later.
Held: complaint to neighbour fresh - complaint to doctor not fresh.

Rees
NSWSC (Bell J) [643] 19.6.2000
Evidence Act 1995 (NSW) s.66 - murder - co-accused pleaded guilty to robbery - participated in ERISP with police incriminating accused in killing - claimed on voir dire could not remember offence - forensic purpose of crown in calling co-offender was to obtain leave to cross-examine him and tender ERISP.
Held: ERISP admissible - ERISP conducted 32h after offence - fresh - probative value neither slight nor neutral - prejudice of inability to cross-examine not significant.

Taousanis
NSWSC (Hidden J) [74] 7.2.2001
Evidence Act 1995 (NSW) s.66 - murder - Crown sought to lead evidence from police as to positive identification made by Crown witness - Crown witness identified person he sold boat to 4 months after sale of boat - signed back of photograph of person identified - no independent recollection of identification.
Held: evidence inadmissible - following reasoning of Grove J in Barbaro evidence of act of identification hearsay and only admissible if identification made when original sighting fresh in memory of person making identification - 4 months not fresh.

Taousanis
NSWSC (Hidden J) [75] 7.2.2001
Evidence Act 1995 (NSW) s.66 - murder - Crown sought to tender evidence of identification of boat by Crown witness.
Held: evidence admissible - evidence recognition not identification - admissible under s.66 because at time of recognition witness’ continuing familiarity with features of person or object fresh in memory.

DPP v Nicholls
(2001) 123 A Crim R 66; NSWSC [523] 22.6.2001 (Adams J)
Evidence Act 1995 (NSW) s.66 - assault - victim identified defendant from photograph several years after assault - anticipated would give evidence of that identification.
Held: evidence admissible - disagreed with Hidden J in Taousanis - witness can give evidence that he identified assailant from photographs - s.59 does not arise except in reference to evidence of any mark made by victim but such evidence satisfies s.66 because made when recollection fresh - police officer may give evidence of identification - admissibility not affected by victim’s inability to make same identification at trial.

DBG
(2002) 133 A Crim R 227; NSW CCA [328] 10.9.2002
Evidence Act 1995 (NSW) s.66 - sexual assault - complaint evidence
Held: discussion as to distinction between evidence of complainant admitted under s.66 and same evidence admitted under s.108.

Parkes
(2003) 147 A Crim R 450; NSW CCA [12] 17.2.2003
Evidence Act 1995 (NSW) s.66(1) - fraud offence - admissibility of statement made by appellant to Crown witness - TJ rejected Crown witness’ evidence - whether appellant “available” to give evidence
Held: TJ erred in refusing defence counsel to cross-examine Crown witness about his statement - appellant “available” pursuant to s.66(1) to give evidence about statement made to Crown witness - appellant’s representation to Crown witness was likely to have been fresh in memory and therefore was admissible.

G.A.R.
NSW CCA [224] 19.8.2003
Evidence Act 1995 (NSW) s.66(1) – sexual assault - evidence of sexual complaint admissible as representation – inconsistent verdicts
Held: evidence of complaint can be admitted as representation under s 66 as evidence of facts intended to be asserted by representation, provided statement is "fresh in the memory" and is able to be proved by evidence of person making it, as well as by any person who witnessed representation being made.


Rymer
NSW CCA [310] 6.9.2005
Evidence Act 1995 (NSW) s.60, s.66 – sexual assault – admissibility of exculpatory statements of innocence made to police at time of arrest – TJ admitted material pursuant to s.66 on basis accused would give evidence – alleged offences occurred 6 years prior to arrest
Held: evidence not fresh and therefore not admissible pursuant to s.66 – admissible under s.60 as relevant to credibility – evidence should be led by Crown unless some reason not to do so

Brown, Barwick and Brown
NSW CCA [69] 22.3.2006
Evidence Act 1995 (NSW) s.66 – mal wounding – complainant found severely bashed – at time of trial no memory of assault – named accused as assailants to sister and other witnesses on two occasions shortly after assault – Crown sought to led evidence from other witnesses as to complainant’s statements - trial judge ruled complainant unavailable at trial pursuant to s.13 due to lack of recollection – allowed statements on basis nothing to persuade her statements likely to be fabricated or unreliable
Held: trial judge erred – s.13 does not apply to lack of recollection or memory – complainant was available – also reversal of proof in applying test under s.65(2)(b) and (c) – concluded nothing to persuade her statements likely to be fabricated or unreliable – test requires positive conclusion – whether circumstances exist that make it highly unlikely statements fabricated – whether circumstances exist making it highly probable statements reliable – despite errors evidence admissible under s.66 

Langbein
NSW CCA [2008] NSWCCA 38
Evidence Act 1995 (NSW) s66, 108 — persistent sexual abuse – whether TJ erred in admitting complaint evidence under s66
Held: Complaint evidence should not have been admitted for a hearsay purpose – the period of delay (66 days) was too long to "maintain freshness" in V’s mind: at [85] —Graham (1998) 195 CLR 606; Papakosmas (1999) CLR 297 discussed - (cf Skipworth[2006] NSWCCA 37, where a delay of 66 days did not prevent the evidence being admitted under s66.) - But no miscarriage of justice occasioned since the evidence was admissible under s108 to re-establishing credibility – error not significant as the defence had suggested that V had fabricated her evidence - evidence could therefore have been admitted under s.108: at [90]. 

Gordon-King
NSW CCA [2008] NSWCCA 335
Evidence Act 1995 (NSW) s66 — sexual assault child aged 15 – whether TJ erred in admitting complaint evidence under s66.
Held: Complaint evidence properly admitted for a hearsay purpose – period of delay (47 days) – single event of sexual assault. 

RLP
NSW CCA [2009] NSW CCA 93, 8.4.2009
Evidence Act 1995 (NSW) s.66(2) - sexual assault child aged 14 – complaint made 3 months after offence
Held: appeal allowed – not open to find complaint fresh just because complaint a 14y girl 

XY
NSW CCA [2010] NSW CCA 181,6.9.2010
Evidence Act 1995 (NSW) s.66(2), 66(2A) - sexual assault child – whether evidence of two complaints admissible – assaults occurred between 2003 – 2005 – complaints made in 2007 to CD and 2009 to parents – whether TJ erred in excluding evidence – Crown appeal s5F(3A) Criminal Appeal Act against trial judge’s ruling – proper construction of s66(2), (2A) – meaning of “fresh in the memory”
Held: Appeal allowed – both complaints admissible. 
Whealy J outlined the policy / reasons underlying the amendment to s66 Evidence Act and the proper construction of ss66(2) and (2A): [70]-[79].  
Section 66(2A) makes clear that, in determining whether the occurrence of the asserted fact was “fresh in the memory” of the person, the court may take into account “all matters that it considers are relevant to the question" in addition to the matters listed in the subsection being
(a) the nature of the event concerned, and
(b) the age and health of the person, and
(c) the period of time between the occurrence of the asserted fact and the making of the representation: at [78].
The phrase “fresh in the memory” no longer means “recent” or “immediate”. "Fresh in the memory” is now to be interpreted more widely than did the High Court in Graham’s case. No longer is the “core meaning” of the phrase to be interpreted as “essentially confined to an examination of the temporal relationship between the occurrence of the asserted fact, and the time of making of the representation”: at [79].
The trial judge erred in excluding the evidence on the basis of the “inexactness” of the complainant's statements in his police interview which made it difficult to know what was the period of time between the “occurrence of the asserted fact” and the making of the representation; and thus one could not be sure the occurrence of the incidents was “fresh in the plaintiff’s memory”: at [82]. First, detailed examination of the content of the complainant's representation to CD indicates the occurrence of the sexual incidents were indeed "fresh in the memory": at [85]. Second, the trial judge overlooked a number of ways in which there was considerable consistency between the details represented to CD and the statements made by the complainant in his police interview: at [86]ff. Third, it was erroneous to reject the evidence by reference to its possible unreliability based on the inexactness of the complainant’s statements to the police. Ambiguity or apparent inconsistency is not a sufficient reason to reject evidence in a criminal trial. It is for the jury, not the trial judge, to evaluate evidence and the weight to be given to evidence: at [90]. Finally, the 2009 representation to the parents must have been rejected on the basis of “inexactness”. Yet the complaints to the parents were sufficiently vivid to make it clear their occurrence was still markedly operative in the complainant’s memory: at [91]-[92], [105]. 

Singh

[2011] VSCA 263
Complainant too intoxicated to remember making complaint
Held: [15] I accept the submission of counsel for the Crown that cl 4(2) is a complete answer to the applicant’s submission. Unless one of the categories of unavailability in cl 4(1) is established, a person is taken to be available to give evidence about the fact by operation of cl 4(2). The applicant did not fall within any of the categories of unavailability. I note that this point does not appear to have been argued below.  

 

Section 67: Notice to be Given

Taber and Styman
[2005] NSWSC 1035, Studdert J
Evidence Act 1995 (NSW) s 65(3), s.67, s.137 – manslaughter – retrial – third offender gave evidence at previous trial inculpating accused – refused to give evidence at retrial – whether transcript of evidence at previous trial should be admitted
Held: requirement to give notice under s.67 fulfilled – although no written notice provided each accused warned application would be made if witness refused to give evidence 

 

Section 69: Exception: Business Records

Taranto
NSW CCA [396] 16.12.1999
Evidence Act 1995 (NSW) s.69 - ambulance report and operation report recorded powder burns to complainant’s face - reports admitted as business records under s.69 - expert evidence suggested interpretation of powder burns depends upon many variables - whether authors of reports should be called to clarify observations.
Held: authors should be called to give evidence at new trial - if authors unavailable or unable to recall details reports still admissible but weight diminished.


Nye v State of NSW & Ors
(2002) 134 A Crim R 245; NSWSC [1268] (O’Keefe J) 27.9.2002
Evidence Act 1995 (NSW) s s.69(3)(b) - malicious prosecution in relation to murder - objection raised to tender of transcript of evidence from Police Royal Commission - whether transcript “made in connection with an investigation relating or leading to a criminal proceeding”
Held: evidence admitted - broad approach to admission of evidence under Evidence Act - Royal Commission was not investigating crime and had no power to institute criminal proceedings - evidence not made in connection with an investigation relating or leading to a criminal proceeding


Dudko
(2002) 132 A Crim R 371; NSW CCA [336] 20.8.2002
Evidence Act 1995 (NSW) s.69 – offences relating to assisting prisoner escape – whether evidence of telephone records should have been excluded - exception not to apply because records created in breach of s 69(3).
Held: records of telephone calls made by prisoner relevant and admissible – Remand Centre where prisoner held was relevantly a "business" for purposes of Act – prisoner’s representations clearly obtained for purpose of administration of Remand Centre telephone system and were not made in contemplation of or connection with any criminal proceedings.

Taylor
NSW CCA [194] 7.11.2003
Evidence Act 1995 (NSW) s.69 - murder - admissibility of solicitor's file note containing instructions from a client as a business record under s 69(2) - whether TJ erred in exercise of discretion under s.135 in not allowing defence to tender file note.
Held: File note was a business record under s.69. No error in exercise of TJ’s discretion under s.135 not to allow tender.

Lithgow City Council v Jackson
[2011] HCA 36
Evidence Act 1995 (NSW) s 55, 69, 78 – civil case – Respondent found badly injured in a park at the base of a 1.41m wall – Issue at trial was whether respondent fell down unprotected vertical face of wall, or stumbled down more sloped parts of wall either side - Trial judge found respondent had failed to establish causation - Respondent sought to rely upon statement made in ambulance record by officers attending scene:
"? Fall from 1.5 metres onto concrete"
Trial judge ruled statement could not be relied upon as evidence of the truth of its contents. Neither ambulance officer was called to give evidence - on appeal court held statement admissible and could be used to establish causation.
Held: appeal allowed – appeal to Court of Appeal dismissed - The document was a business record and could be admitted as an exception to hearsay under s.69. To be admissible, however, the statement must be made satisfy subsection (2) - In this case neither the ambulances officers making the statement, nor any bystanders who may have given them information on which the statement was based, witnessed the fall. If the ‘asserted fact’ was the fall sub-section two was not satisfied.
Some cases have accepted that the ‘asserted fact’ could be an opinion. The Court concluded
[17] … But the construction of "asserted fact" to include an opinion in relation to a matter of fact, though convenient, is a little strained. In one sense every person who holds an opinion has personal knowledge of it, and indeed is the only person to have personal knowledge of that person's opinion. But to hold an opinion that the respondent fell in a certain way (or that there is a question about it) is different from having personal knowledge that he fell in that way (or that there is a question about it): that personal knowledge could normally only be derived from seeing or perhaps hearing the event, not by drawing inferences from other circumstances observed some time later. However, it was not argued in this Court that the authorities which state that "asserted fact" includes an opinion in relation to a matter of fact are wrong.
Respondent argued provisions relating to opinion evidence under ss76-79 apply only to witnesses in court and do not apply to evidence made admissible as a business record under s 69. Although not debated in the courts below strong reasons for finding such an argument is wrong. [18]-[22]

 

Duncan
[2015] NSWCCA 84
Evidence Act 1995 (NSW) s.69 – sleeping judge – appellant alleged judge slept through portions of trial - sought to tender letter from solicitor to Judicial Commission containing account of her observations at trial – also sought to tender medical report from treating physician dated two years after trial and referring to diagnoses of sleep apneoa
Held: solicitor letter – per Simpson J at [30] expresses reservations about letter written by solicitor on behalf of client containing factual assertions derived from client's instructions but accepts appears to be covered under s.69 – excluded under relevance test – per Hall J at [128], [131] s.69 makes representation in business record admissible provided subsection (2) requirement as to personal knowledge satisfied - accepts letter covered by s.69 but contains no relevant factual material obtained by personal knowledge – personal knowledge gained from seeing or hearing an event
Doctor's report – per Simpson J [47]-[50] – failure to establish representation in document based on personal knowledge – per Hall J at [139]-[141] report not relevant because written two years later

 

 

Division 3: Other Exceptions to the Hearsay Rule

 

Section 70: Exception: Contents of tags, labels & writing (Cth Act only)

 

Kessing

[2008] NSWCCA 310
Evidence Act 1995 (NSW) s.70 - former Commonwealth officer communicate contents of document which under duty not to disclose – s 70 writing placed on a document – by-line in newspaper article – newspaper article admitted as Exhibit - whether within exception
Held: The trial judge was correct to admit newspaper article as exhibit. The newspaper was received in order to prove the words that appeared in the two articles. This was relevant to proof of the Crown case.

A circumstance in the Crown case was that the article contained quotations from the reports and paraphrased parts of the reports (or at least the Risk Analysis report). The invitation to compare the two did not involve an invitation to use the articles for a hearsay purpose.  The text of an article printed in a newspaper or magazine is not writing placed on an object (including a document) within s 70. Moreover, without addressing consideration of such rights as employed journalists may have in their work published in a newspaper, magazine or periodical it is straining the language of s 70 to hold that the by-line has been placed on the document to state the ownership of the article: at [38] – [42].

 

Section 72: Exception: contemporaneous statements about a person’s health etc.

Welsh
(1996) 90 A Crim R 364; NSW CCA 6.11.1996
Evidence Act 1995 (NSW) s.72 - murder - expert medical evidence bearing on state of mind of accused - expert’s opinion based on history given by accused and mother of accused
Held: (allowing evidence under s.60) - statements not relevantly ‘contemporaneous’ and therefore not admissible under s.72.


Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.72 - sexual assault - evidence of complainant’s belief that accused had assaulted people and shot someone tendered as evidence to explain why she did not call out for help
Held: relevant - not hearsay - not tendency or coincidence evidence - not credibility evidence - not unfairly prejudicial to accused.

Lock
(1997) 91 A Crim R 356 (NSWSC Hunt CJ at CL)
Evidence Act 1995 (NSW) s.72 - murder of husband - claimed stabbed husband in self defence - Crown sought to lead evidence of statements made by victim of fears he had in relation to accused’s use of knives.
Held: evidence admissible under s.72 - went to issue of whether relationship was one of mutual violence - excluded under s.137.

Serratore
(1999) 48 NSWLR 101; NSW CCA [377] 29.11.1999
Evidence Act 1995 (NSW) s.72 - murder of girlfriend - where crown led evidence of statements deceased made to mother of her intention to end relationship
Held: evidence admissible

Taumaialo
NSW CCA [14] 18.2.2000
Evidence Act 1995 (NSW) s.72 - aggravated sexual assault on 14y female - forced intercourse while complainant at accused’s home alone - complainant returned to house next day and second offence occurred - complainant gave evidence she had returned to house because accused threatened her and she had heard people say he had a gun and was not afraid to use it - jury directed as to limited use that could be made of evidence - directed it was evidence of complainant’s state of mind not accused’s behaviour.
Held: evidence admissible - followed Preston.

Barbaro; Rovere
(2000) 112 A Crim R 551; NSW CCA [192] 26.5.2000
Evidence Act 1995 (NSW) s.72 - whether indication of witness to police officer identifying a person in a photograph is statement by witness as to their state of mind.
Held: probably not but matter not argued in full

Burrell
NSWSC Sully J [120] 5.3.2001
Evidence Act 1995 (NSW) s.72 - murder - body never found - Crown case circumstantial - accused made surprise visit to victim prior to disappearance - victim asked nanny not to say anything about visit - heard victim mutter to herself “That bastard, why did he do this to me”
Held: comment admissible under s.72 - excluded under s.137 - too vague and obscure.

Serratore
NSW CCA [123] 6.4.2001
Evidence Act 1995 (NSW) s.72 - murder of girlfriend - circumstantial case after body found - evidence of conversation with friend 5 months prior to killing asking him to kill deceased - conversation occurred during ‘rough’ time in relationship - accused and girlfriend subsequently resumed relationship - admitted as evidence showing intent to kill at time of conversation.
Held: no error in admitting evidence - O’Leary principle - in context of volatile relationship conversation was proximate enough to death to warrant admissibility as part of chain of circumstances - what lapse of time will break continuum depends upon circumstances of case - not tendency evidence but part of connected series of events - Adam.

Hemmelstein
NSW CCA [220] 6.6.2001
Evidence Act 1995 (NSW) s.72 - importation of drugs - cocaine found in appellant’s golf bag brought in on plane - appellant maintained came to Australia to play golf and did not know about drugs - claimed bag belonged to friend - Judge refuse to admit evidence from appellant’s brother that appellant told him he was coming to Australia to play golf.
Held: appeal dismissed - (per Smart J dissenting) evidence was admissible because Crown conducted case disputing appellant’s story and putting to accused he did not come to Australia to play golf - put accused’s state of mind in issue.
(per Hulme J) - admissible under s 72 but proviso applied.
(per Meagher J) - evidence irrelevant - did not affect knowledge of drugs.

Clark
(2001) 123 A Crim R 506; NSW CCA [494] 13.12.2001
Evidence Act 1995 - s.72 - murder - evidence of hostile relationship between appellant and deceased - whether “relationship evidence” admissible - evidence of contemporaneous representations by deceased demonstrating deceased’s negative state of mind about relationship with appellant.
Held: to extent that relationship evidence was hearsay, it was admissible under s72.


 

Section 73: Exception: reputation as to relationships and age

Mrish
NSWSC (Hidden J) 15.8.1996
Evidence Act 1995 (NSW) s.73 - reputation as to relationships and age - evidence of possible sexual relationship between accused’s wife and another.
Held: not admissible under s.73 - s.73 directed to evidence of fact of relationships, not their quality or stability.