R v Bagster

Submissions

1. The defence do not object to tender of the transcript of what Ms Wright says she had personal knowledge of. They accept that the exception in s 65(3) Evidence Act applies to those portions of the transcript. They do, however, object to the tender of those portions of the previous trial's transcript containing Jane Birch's assertions about the accused and what she says he did to her. The defence position is that this portion of the previous trials transcript is inadmissible third hand hearsay to which the exception in s 65(3) Evidence Act cannot apply.
2. It is inadmissible, they submit, because s 62 Evidence Act applies to the proposed tender, and s 62 restricts the exceptions to the hearsay rule to a previous representation that was made by a person who had personal knowledge of an asserted fact. Here, that would mean only representations of what was in Ms Wright personal knowledge, not Jane Birch's could be admissible at the second trial.
3. A document setting out the portions of the earlier transcript the defence say are admissible was tendered as Voir Dire (VD) Exhibit C. If a hearsay exception is being considered the Evidence Act applies to each individual representation but here the rationale for admitting or rejecting admissibility of Jane Birch's assertions applies equally to each impugned representation: Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32.
4. Notice of Wright's unavailability and the intention to tender the full transcript was given properly: s 67 Evidence Act.
5. The prosecution rely upon the exception to the hearsay rule in s 65(3) Evidence Act. In their submission the preconditions to admissibility relating to cross-examination are met. Accordingly, the evidence of all Ms Wright's evidence in the first trial may be adduced by producing and tendering an authenticated transcript of the earlier proceedings: s 65(6) Evidence Act.
6. In the prosecution's submission s 65(3) Evidence Act is clear in its terms. The hearsay rule does not apply to the evidence of the previous representations made by Ms Wright in the course of giving evidence in the early proceedings. Once an exception is allowed for the evidence in the earlier proceedings that must include all the evidence given previously, including the evidence of what Jane Birch asserted to Ms Wright. Nothing in s 63 (3), they submit, requires consideration of s 62. Rather, s 63(3)'s intent and focus is on the evidence of the previous representations made in the earlier proceedings. It is not restricted to evidence of what Ms Wright herself thought heard or otherwise perceived. Accordingly, editing of the previously admitted evidence is not mandated by s 62.
7. Mr Fraser, Public Defender, for Bagster, submits this submission does not overcome the requirement that s 62 Evidence Act applies to all of Division 2, Part 3.2 Evidence Act. And as it applies, s 62 restricts the s65 (3) exception to evidence about which Wright had personal knowledge. If s 65(3) was merely facilitative of tender of the evidence in previous proceedings it could have been placed in a stand-alone section or an exception for s 65(3) would have been placed in s 62. Parliament did not do this. While at common law a translation of a representation did not attract the hearsay rule no analogy could be made with a transcript from an earlier trial. A transcript like a statement is a previous representation to which the hearsay rule applies.
8. In response Mr Todd, Crown Prosecutor, says s 65(3) Evidence Act should not read down by reference to s 62. The hearsay rule was not intended to apply to and does not apply to evidence of the previous representation contained in an authorised transcript. There is no need to hear from someone who, heard or otherwise perceived the representation being made, as is required with the exceptions in s65(2). Section 65 (3) is a broad provision designed to allow all the previous representations admitted in the earlier trial. It is facilitative and intended to include everything said by the witness in the earlier proceedings. There is no intention in the Evidence Act that requires a court in a second trial revisit any hearsay rule exception that allowed the evidence to be given in the first trial. The hearsay rule and s 62 do not need to be reapplied to the transcript

The Evidence Act 1995

1. Section 59 (1) Evidence Act 1995 provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. Such a fact is referred to as an asserted fact: s 59(2) Evidence Act.
2. The Dictionary to the Evidence Act notes, relevantly, that a previous representation includes an express oral representation a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
3. Section 62 Evidence Act states, relevantly: (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
4. Section 65 (3) Evidence Act states, relevantly: "The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian …proceeding…"
5. This can be contrasted with s 65(2) which notes, relevantly: "The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if …"
6. Section 65 (3) has a number of preconditions and if evidence is admitted there must be compliance with s 65(6).

Consideration

1. Section 65(3) Evidence Act permits the tender of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if in it the defendant in the proceedings in which the previous representation is being tendered either cross-examined the representor about the previous representation or had a reasonable opportunity to do so.
2. It is not in dispute that Mr Fraser, who appeared for Mr Bagster, in his first trial had the opportunity to cross-examine Ms Wright in the first trial.
3. The author of Cross on Evidence notes; "The reception of hearsay evidence pursuant to s 65 (3) is restricted to firsthand hearsay: s 62:" At [35510] JD Heydon, Lexis Red, online edition, updated September 2021. No authority other than s 62 is cited for this proposition. Mr Fraser submits this is because the policy behind Division 2 Part 3.2 Evidence Act is clear.
4. In R v Taber [2007] NSWCA 116, evidence of an unavailable co-accused's evidence, including admissions, was tendered as an exception to the hearsay rule. It does not appear that Mr Fraser's point was taken at trial or on appeal. Although s 65 Evidence Act has been regularly considered by appellant courts neither my nor counsel's research could find any reference to the direct point raised here in other authority.
5. Any question of admissibility starts with the s 55 Evidence Act question - is the proposed relevant?
6. Here, the impugned evidence about what the deceased witness Ms Wright heard Jane Birch say is evidence that it might reasonably be supposed Jane Birch was representing as fact based on her own experience. This evidence was previously admitted pursuant to the s65 (2) exception.
7. The hearsay rule in s 59 Evidence Act is purposive. Its operation depends on the purpose that is to be made of the evidence. Generally, this requires that: 1. The evidence is evidence of a previous representation. 2. It was made by a person 3. The purpose of adducing the evidence is to prove the existence of the facts asserted by the representation 4. It can reasonably be supposed that the maker of the representation intended to assert that facts/s: Uniform Evidence in Australia 3rd edition 2020, Weinstein et al Lexis Nexis at [59-2]
8. "Previous representation" has a broad and inclusive definition. Only evidence of a representation that is admitted to prove the existence of a fact that it can reasonably be supposed that the maker intended to assert breaches the rule: Lee v The Queen (1998) CLR 594; [1994] HCA 60.
9. As the High Court noted in Lee v The Queen at Common Law, generally, third hand hearsay is inadmissible to prove a fact in issue as: "One very important reason why the common law set its face against hearsay evidence was because otherwise the party against whom the evidence was led could not cross-examine the maker of the statement. Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial:" At [32].
10. The High Court there noted that it was "not surprising that the exceptions to the hearsay rules in the Evidence Act were "of a limited kind," and in Division 2, confined to "first-hand" hearsay: that is, subject to s 62 Evidence Act: Lee at [34].
11. The High Court also noted that provisions for these exceptions are to be understood by reference to the view expressed by the Australian Law Reform Commission that, "second-hand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility:" Australian Law Reform Commission, Evidence, Report No 26 Interim, (1985), vol 1 at par 678.
12. This is because, as the Commission pointed out, where A gives evidence of what B said that C had said, the honesty and accuracy of recollection of B is a necessary link in the chain upon which the probative value of C's statement depends. Estimating the weight to be attached to what C said depends on assessing B's evidence about it: Lee v The Queen at [35].
13. The Evidence Act was amended after Lee v The Queen to allow for some third hand hearsay's admissibility, except in the case of admissions: s 60(2) and 60 (3). However, s 60 is not in the Division of the Evidence Act to which s62 applies. Section 65(3) is in the Division of the Act to which s 62 applies.
14. If notice is given, s 65(3) Evidence Act allows evidence given in previous proceedings by a witness to be admitted if the preconditions in s 65 (3) or 65(5) are met. Section 65 (6) allows the evidence to be adduced not as a representation by another but by tendering the transcript.
15. Section 65(3) Evidence Act is the only provision in Division 2 of Part 3.2 Evidence Act, that does not require evidence of firsthand hearsay to be given by a person who saw heard or otherwise received its being made: Evidence Law in Australia 15th Edition, S Odgers. Thompson Reuters 2021 at 1[65.270]
16. The argument that best supports the prosecution case is elegant in its simplicity - the hearsay rule does not apply to the evidence that will be adduced in the new trial but to what was said in the first. Section 65(6) indicates how the representation is to be proved. And the transcript is not the representation to which the s 65(3) exception applies.
17. As an exception to the hearsay rule applied in the first trial the rule does not need to be revisited in the second. That is because the transcript is not put forward as evidence of a representation made by a person who prepared the transcript saw, heard or otherwise perceived. The transcript is a means of communicating what was said and is not a link in the hearsay trail, to which s 59 Evidence Act applies.
18. Accordingly, if the transcript is not the representation for the purposes of the Evidence Act, s65 (3) Evidence Act applies in it terms and "the hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian … proceeding."
19. But the transcript is a representation of what was said in the earlier proceedings. And s 65(3) Evidence Act speaks to "evidence of a previous representation" If its preconditions are meet it is not a stand-alone exception to the hearsay rule.

Determination

1. In most trials where s 65(3) Evidence Act is invoked, the evidence in the earlier proceedings would be admitted pursuant to that exception to the hearsay rule. But the prosecution argument relies on an assumption that s 62 is not engaged.
2. Section 62 Evidence Act is an important gateway provision that offers an exception to the hearsay rule in s59, making it clear that any hearsay exception applies only to firsthand hearsay.
3. Here the currently unavailable witness (Ms Wright) gave evidence on the last occasion (the discontinued trial) and her evidence included representations made to her by an unavailable person (the deceased). I ruled that that evidence was admissible in the previous trial, applying s 65(2) Evidence Act.
4. The transcript of that evidence can be certified and put before this jury: s65(6). But that transcript includes Ms Whites previous representations about previous representation made by Jane Birch. That the hearsay rule was applied in the first trial does not mean it should not be applied again.
5. Section 65(3) Evidence Act admissibility is subject to both the hearsay rule and its limitation to firsthand hearsay in s 62, requiring a further consideration of s 66(2). That consideration requires exclusion of all the portions of the transcript of the earlier proceedings where Ms Wright asserts things which she did not see, hear or otherwise perceive.
6. The evidence able to be tendered in this trial can only include those portions of the transcript made by a person who had personal knowledge of an asserted fact. Accordingly, the edits suggested by Mr Fraser in VD exhibit C must be made before the transcript of Ms Wright's representations in the earlier proceedings are read to the jury.

Other issues

1. A prosecution submission was made that s 285 Criminal Procedure Act 1986 would allow the transcript of the earlier trial to be tendered without the Evidence Act applying to it. That submission was not pursued. The prosecution accepted it was bound by the decision of the Court of Criminal Appeal in Li v R [2003] NSWCA 386.
2. The defence submitted that given Ms Wright had died since I last ruled her evidence was admissible as an exception to the hearsay rule that I revisit my earlier ruling. Section s 130 A (3) Criminal Procedure Act allows for this: "If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding."
3. The fact that a witness is now deceased cannot now bring into question that earlier judgment. That fact alone does not support a contention that in interests of justice it should not be binding in this second trial.
4. The arguments put were more suited to Mr Fraser's second argument that if the evidence was admissible pursuant to s 65(3) Evidence Act, I should exclude the assertions attributed to Jane Birch by application of s 137 Evidence Act. That is that I should "refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
5. It was submitted the first trial the jury's capacity to properly evaluate the evidence of Ms Wright had now been diminished by her unavailability and that incapacity would hinder unfairly their assessment of any assertion Ms Wright attributed to Jane Birch. This was because what was in the transcript was too remote and the new jury could not just from having the transcript read to them make any assessment of demeanour, reliability and believability.
6. I do not accept that argument. Section 65 (3) Evidence Act is designed for the purpose of allowing what an unavailable witness in previous proceedings to be put before a jury. It is recognised that this may cause problems, but a hearsay caution can be given to the jury: s 165 (1)(a) Evidence Act. And, while the jury will not be able to hear and see Ms Wright it cannot be said that the defence have lost the opportunity to test her evidence. Section 65 has within it safeguards to ensure only evidence subject to cross-examination can be tendered. No suggestion all proper matters were raised on the last occasion. makes no mention of the nature and extent of the cross-examination: Puchalski v R [2007] NSWCCA 220.

Orders

1. The Prosecution can only tender those portions of Ms Wright's evidence from the first trial that set out her representations of what she saw, heard or otherwise perceived- as per VD Exhibit C.

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