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

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

The evidence of the accused's 'slit throat' gesture as described in paragraph 17 of Andrew Thompson's statement is inadmissible, as it does not satisfy the requirements of s 66A; the evidence lacks direct personal perception as required by s 62(3) and s 82, and even if admissible, its probative value is outweighed by the danger of unfair prejudice under s 137.

Jurisdiction
Australia
Judgment Date
08 July 2019
Procedural Posture
Criminal / Procedural Ruling on Evidence Admissibility
Outcome
Objection upheld, evidence inadmissible.
Legal Topics
['admissibility of Evidence' 'hearsay Rule' 'state of Mind Representation' 'unfair Prejudice']
['criminal Law' 'evidence'] ['admissibility of Evidence' 'hearsay Rule' 'state of Mind Representation' 'unfair Prejudice']

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Procedural Posture

Criminal / Procedural Ruling on Evidence Admissibility

Legal Issues

  1. 1 ["Whether evidence of a 'slit throat' gesture attributed to the accused is admissible under s 66A of the Evidence Act 1995 (NSW)" 'Whether direct evidence of perception is required under s 62(3) and s 82 of the Evidence Act' 'Whether the probative value of the evidence is outweighed by the danger of unfair prejudice under s 137 of the Evidence Act']

Ratio Decidendi

The evidence of the accused's 'slit throat' gesture as described in paragraph 17 of Andrew Thompson's statement is inadmissible, as it does not satisfy the requirements of s 66A; the evidence lacks direct personal perception as required by s 62(3) and s 82, and even if admissible, its probative value is outweighed by the danger of unfair prejudice under s 137.

Court Disposition

Objection upheld, evidence inadmissible.

Orders

  • ["Evidence in the first sentence of paragraph 17 of Andrew Thompson's statement rejected." 'Questions designed to elicit evidence in accordance with para 17 of the statement rejected and marked for identification as MFI 11.']