R v Camelo-Gomez (No 2) [2022] NSWSC 211

R v Camelo-Gomez (No 2) [2022] NSWSC 211

The admissibility of disputed hearsay representations is to be determined by detailed consideration of whether each representation falls within a statutory exception, namely s 65(2)(b), s 65(2)(c), or s 66A of the Evidence Act 1995 (NSW), focusing on the circumstances in which each was made and whether the representation reflects the deceased’s contemporaneous state of mind or intention, or was made in closely proximate time to the asserted fact. Where contemporaneity or reliability cannot be established, the evidence must be excluded. Furthermore, even where an exception applies, evidence may be excluded under s 135 of the Act if the risk of unfair prejudice outweighs probative value.

Jurisdiction
Australia
Judgment Date
03 March 2022
Procedural Posture
Criminal / Pre Trial Ruling on Admissibility of Evidence
Outcome
Orders made on admissibility of evidence; some hearsay representations admitted and others excluded; evidence as to [redacted] excluded.
Legal Topics
['admissibility of Hearsay' 'hearsay Exceptions' 'pre Trial Procedure']
['criminal Law' 'evidence'] ['admissibility of Hearsay' 'hearsay Exceptions' 'pre Trial Procedure']

Case Brief

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Procedural Posture

Criminal / Pre Trial Ruling on Admissibility of Evidence

Legal Issues

  1. 1 ['Whether disputed hearsay evidence is admissible under statutory exceptions in the Evidence Act 1995 (NSW)' 'Whether certain evidence should be excluded as unfairly prejudicial under s 135 of the Evidence Act']

Ratio Decidendi

The admissibility of disputed hearsay representations is to be determined by detailed consideration of whether each representation falls within a statutory exception, namely s 65(2)(b), s 65(2)(c), or s 66A of the Evidence Act 1995 (NSW), focusing on the circumstances in which each was made and whether the representation reflects the deceased’s contemporaneous state of mind or intention, or was made in closely proximate time to the asserted fact. Where contemporaneity or reliability cannot be established, the evidence must be excluded. Furthermore, even where an exception applies, evidence may be excluded under s 135 of the Act if the risk of unfair prejudice outweighs probative value.

Court Disposition

Orders made on admissibility of evidence; some hearsay representations admitted and others excluded; evidence as to [redacted] excluded.

Orders

  • ['See reasons and the schedule annexed to this judgment as to admissibility of hearsay evidence.' 'Evidence as to [redacted] is excluded.']