Solicitors:
NSW Director of Public Prosecutions (Crown)
Peters Lawyers (Accused)
File Number(s): 2016/276529
[2]
Judgment
The accused has been charged with the murder of his wife at Milperra between 12 and 13 September 2015. The accused has raised a partial defence of substantial impairment of mind and offered to plead guilty to manslaughter on that basis.
An issue has arisen regarding the admissibility of some representations made by the deceased.
The Crown served a notice pursuant to s 67 of the Evidence Act 1995 (NSW) regarding its proposal to lead evidence of those previous representations by the deceased. The material identified in included representations made by the deceased to a doctor contained within the medical records of Anne Rogers prepared at Bankstown Hospital during an admission on 22-23 August 2016;
I was asked to deal with these issues pre-trial on Friday 20 July 2018 before commencing the trial on Monday 23 July 2018. I indicated by ruling on this issue with others by email on Friday 20 July 2018 in the following terms:
The following two sentences contained in the Medical Records of Anne Rogers are inadmissible "She states that her husband then handed her a bottle of his Temazepam tablets asking her to take it. Anne took all 22 tablets of 10 mgs of Temazepam at about 4pm in front of her husband". The requirements of neither s 65(2) or s 66A have been met.
These are my formal reasons for reaching that view. Formal reasons have not been required for my other rulings.
The Crown argued that the representations were admissible as exceptions to the hearsay rule, Evidence Act 1995 (NSW) s 65(2)(b) and (c). It was also argued that s 66A of the Evidence Act was another basis pursuant to which the representations made by the deceased could be received.
Counsel for the accused argued that none of the exceptions applied.
The representation in issue was part of an account given by the deceased to an emergency department doctor at Bankstown Hospital where she was taken late on 22 August 2016 after she had taken an overdose with Temazepam.
The objected to portion was as follows:
"She states that her husband then handed her a bottle of his Temazepam tablets asking her to take it. Anne took all 22 tablets of 10mg Temazepam at about 4pm in front of her husband"
[3]
Relevant legal principles and statutory framework
Part 3.2 of the Evidence Act deals with hearsay. Section 59 begins with the exclusionary rule and the following provisions provide a series of exceptions. Section 59 provides as follows:
59 The hearsay rule - exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
(3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.
The maker of the assertions here is unavailable by reason of her death, and a s 67 notice had been appropriately served.
Section 65 provides relevantly as follows:
65 Exception: criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:
(a) was made under a duty to make that representation or to make representations of that kind, or
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c) was made in circumstances that make it highly probable that the representation is reliable, or …
It is clear that the Crown bears the onus in establishing that the relevant exception applies to the evidence sought to be adduced. Section 65(2)(b) contains a double requirement that the representation was made when or shortly after the asserted fact occurred as well as that it was made in circumstances that make it unlikely that the representation is a fabrication.
Section 65(2)(c) requires that the representation was made in circumstances that make it highly probable that the representation is reliable.
As stated in R v Walker [2017] NSWSC 997, Schmidt J:
[21] What is meant in s 65(2)(b) by "shortly after" is not defined. …it was observed in Harris at [39]:
"39 …No attempt has been made in the decided cases to prescribe the words "shortly after" by the passing of any defined period of time. Each case has to be considered having regard to its own particular circumstances. For example, as Mr Dhanji properly acknowledged in the course of his able argument, a statement made by a person recovering consciousness five days after an event may well be considered to have been made "shortly after" that event."
As stated in Sio v R (2016) 259 CLR 47; [2016] HCA 32, the language of s 65(2)(c) directs attention to the objective circumstances in which the representation was made, and not the apparent truthfulness of the person making it.
In addition to s 65(2)(b) and (c), the Crown Prosecutor argued that s 66A of the Evidence Act applies. Section 66A provides as follows:
66A Exception: contemporaneous statements about a person's health etc
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.
[4]
Context of representation in issue
The representation was part of a five page record of the Bankstown Hospital emergency department which indicated that an assessment took place by a doctor at about 1.00am on 23 August in relation to the deceased having taken the Temazepam at about 4pm on 22 August.
Under the heading "History of presenting problem", the following appears:
"…her husband had found out about her relationship and did not take it well. They have been having arguments regarding this matter daily causing a marital rift. Yesterday her husband found an email sent by this person and Anne had responded back to that email. They had an argument at home and Anne stated that she felt like dying. She states that her husband then handed her a bottle of Temazepam tablets asking her to take it. Anne took all 22 tablets of 10mg Temazepam at about 4pm in front of her husband…"
Evidence tendered on the hearing of this application before trial was limited to the five page clinical record of the admission 22 to 23 August 2016 and some witness statements.
The Crown submitted that the representations made to medical staff at Bankstown Hospital were made by the deceased after a particularly stressful and emotionally confronting incident surrounding her suicide attempt which informed her presentation at the emergency department. It was argued that given the extremity of the situation, and her immediate need for medical attention, the therapeutic nature of the relationship between the deceased and medical staff who were treating her and providing her with emergency help, it was unlikely the representations were a fabrication. It was also submitted that staff took notes at the time of providing this help, which also underpinned the likely accuracy and the unlikelihood that the representations were a fabrication.
Mr Pontello for the accused submitted that the general circumstances of the presentation to the emergency department included a background of an acrimonious breakup of the marital relationship which involved the deceased cheating and going behind the accused's back, conducting a romantic relationship with Jeff Langham. In July 2016, such was the distress of the accused about this relationship, he asked the deceased to leave, however they resumed cohabitation and the events that led to the admission via the emergency department at the hospital occurred about 3 weeks later. To the contrary, in terms of the likelihood of what was said being accurate, the deceased had a motive to paint herself in a favourable light and to paint the accused in a negative one, given her infidelity. It is not uncommon at all for that to occur in circumstances where there is a breakdown of an intimate relationship, i.e. to paint the other person as the person at fault, and to paint oneself as innocent.
It was also submitted that these things were said in the context of a suicide attempt where the deceased was diagnosed with an adjustment disorder and the account was given eight hours after the deceased had consumed a number of Temazepam.
Mr Pontello submitted that whilst the delay was eight hours, in the context of the representations made that delay is a significant one and tells against admissibility because in effect, the deceased was being interviewed the day after her initial admission during the course of a mental health screening.
Mr Pontello submitted that in the circumstances, there was ample opportunity for the deceased to construct or adopt an account of what occurred for a number of reasons including potentially to cover her embarrassment in admitting that she did it herself. She may have wanted to shift the blame for the suicide attempt to the accused.
Mr Pontello submitted that I should reject the Crown submission that there was nothing inherently unlikely in the representations made by the deceased because that submission incorrectly reverses the test. The onus is on the Crown to point to circumstances that significantly increase the probability of reliability rather than the absence of circumstances which indicate unreliability. It is for the Crown to make it either unlikely that the representation is a fabrication, or alternatively, to make it highly probable that the representation is reliable.
Mr Pontello made the submission that it was evident from the approach of the Crown, that the Crown wishes to rely on the objected to portion testimonially to prove the asserted fact, that is, not just that it was relevant to the deceased's state of mind, but rather to prove the hearsay assertion and to say that it was a fact that the tablets were given to the accused and that she took them in front of him. The Crown intention articulated was to use the evidence to ground essentially a submission that the accused was somehow complicit in her suicide attempt.
[5]
Section 66A
In respect of the s 66A application, the Crown argued that when a person makes a contemporaneous statement about their health, their feelings, their sensations, intention, knowledge or state of mind, the exception to the rule against hearsay set out in s 66A applies. The Crown submitted that what was said in the objected to portion was a contemporaneous representation about the person's health, informed by the very fact that she took those tablets and that led to the presentation to the hospital and the way she presents, which was noted as "drowsy".
It was submitted that s 66A should not be read down, and that it requires the court to take a broader interpretation of the words "representation about the person's health" to include a narrative history being given to a medical practitioner about how it was that the person came to be there presenting with a drug overdose.
It was also submitted that it was a contemporaneous representation about the person's "knowledge", namely what she knew about the events and the incident leading to her attending hospital and how she got the Temazepam.
Further assistance was provided on this issue in the form of a short note from the Crown addressing at my request that guidance was available from authorities that dealt with s 66A.
The Crown's note referred to "well-illustrated classic cases of evidence of fears expressed by a murdered wife about her husband's violence and her intention to leave him", however no authority was cited for this proposition. It was stated that first-hand hearsay evidence of the words and actions of the deceased expressed in these feelings and intentions are usually admissible in the trial of criminal charges against the husband, however again no authority was cited for this proposition and no authority that indicated s 66A as a basis for receiving such evidence. The written note also candidly conceded that there have been attempts to widen the interpretation that could be given to the terms "knowledge" and "state of mind" in s 66A to include belief or memory, but there has been argument against that because it would effectively abrogate the hearsay rule and such an interpretation has not been adopted. An example of that type of interpretation being avoided was in the judgment of Studdert J in R v Hannes [2000] NSWCCA 503 at [480].
The Crown maintained its submission that the "health" considerations of s 66A can be construed to include a representation made to a person about an event, in this case the representation by the deceased about the accused providing her with the Temazepam, because it is something that had an effect or impact on that person's health or condition.
Mr Pontello argued that s 66A is not an appropriate basis upon which to admit the material because it is not evidence of a previous representation made contemporaneously about the deceased's health, feelings, sensations, intention, knowledge or state of mind. The objection was confined to that discrete part of the entry that was not responsive to s 66A. Other material within the broader entry did amount to contemporaneous statements about that person's health, feelings, sensations, intention, knowledge or state of mind, and no objection was taken to that material.
[6]
Decision
The requirements of s 65(2)(b) or (c) have not been met. I accept the submissions made on behalf of the accused that when taking into account all the circumstances surrounding and comprising the presentation to the hospital, in the context of the extra-marital relationship and the suicide attempt, reliability is an issue. The Crown has not persuaded me that the circumstances make it unlikely that the representation is a fabrication. In context, an eight hour time lapse between the events and the representation is not one that qualifies, in all the circumstances, as "shortly after the asserted facts occurred". Section 65(2)(b) has not been met.
The Crown has not met its onus to persuade me that it is highly probable that the representation was reliable. I accept the submissions made on behalf of the accused set out in [22]-[27] of this judgment in this respect.
I am of the view that the s 66A exception, which is directed to contemporaneous statements about "a person's health", etc. does not apply to permit the evidence to come within that exception and I reject the arguments made by the Crown in that regard.
Accordingly, the aspect of the emergency department record in issue is not to be led from the witness.
[7]
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Decision last updated: 22 November 2019