Hearsay, Tendency and the Unreliable Witness
At a District Court trial for assault occasioning actual bodily harm, the complainant gives evidence that the accused punched him outside a hotel. The Crown seeks to adduce: (a) the complainant's statement to a police officer 20 minutes after the event that 'the tall guy in the red shirt hit me'; (b) evidence from a second witness that the accused had, six months earlier, punched a different person at the same hotel; and (c) the complainant's prior inconsistent statement to police that he did not see who hit him. The complainant is now 78, has a mild cognitive impairment, and gave confused evidence about the timing. The accused objects to all three items. The trial judge must rule on admissibility.
1. Advise on the admissibility of each of the three items under the Evidence Act 1995 (NSW).
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Item (a): The complainant's out-of-court statement is hearsay under s 59 if adduced to prove the assault. However, it may be admissible under s 66 as a previous representation made by a person who had personal knowledge of the asserted fact, shortly after the event (20 minutes), when the representation was fresh in the person's memory. The trial judge must be satisfied the representation was made while the facts were fresh. Given the short interval, s 66 is likely satisfied. Alternatively, if the complainant testifies and adopts the statement, it may be admitted as evidence of the truth under s 60 via the hearsay exception in s 66, or as a prior consistent statement under s 108 if the witness's credibility is challenged. Item (b): Tendency evidence is governed by s 97 and requires reasonable notice and significant probative value. A single prior assault six months earlier at the same venue may have significant probative value regarding identity or modus operandi, but the court must apply the s 101 balancing test in a criminal proceeding: the probative value must substantially outweigh any prejudicial effect. The evidence is likely excluded under s 101 given its weak probative force and strong prejudicial risk. Item (c): A prior inconsistent statement is admissible under s 43 for credibility purposes, and under s 60 if the witness is available and the statement is relevant to a fact in issue, but the court must consider s 38 (unfavourable witness) and s 192 leave requirements. The statement may be admitted as evidence of the truth if the requirements of s 60 are met, but the judge should give a direction under s 165 about the reliability of the evidence.
2. How should the judge address the complainant's cognitive impairment in directing the jury?
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The judge should give a direction under s 165 of the Evidence Act 1995 (NSW) warning the jury that the complainant's evidence may be unreliable because of his age and cognitive impairment. The direction should identify the specific factors affecting reliability, including the confusion about timing, and explain why the evidence should be scrutinised with care. The judge must not suggest the complainant is dishonest, only that the evidence may be unreliable. The judge should also consider s 32 of the Evidence Act, which allows a witness with a disability to give evidence in a manner the court considers appropriate, and whether any support person or communication assistance is needed. The jury should be directed to weigh the complainant's evidence against the corroborating evidence, including the police statement and any independent witnesses, and to consider whether the prior inconsistent statement undermines his credibility. The direction should be balanced and must not overemphasise the impairment so as to unfairly prejudice the Crown case.