R v Warwick (No.76) [2019] NSWSC 1516

R v Warwick (No.76) [2019] NSWSC 1516

The statements of Paul Kohout and Guillermo Guzman were admitted as both were found, on unchallenged medical evidence, to be mentally or physically unable to give evidence and it was not reasonably practicable to overcome that inability. The statement of Jose Capparelli was not admitted because the only evidence of unavailability related to inability to travel and a mild cognitive impairment which did not preclude giving evidence, especially as giving evidence by AVL was practicable.

Jurisdiction
Australia
Judgment Date
31 October 2019
Procedural Posture
Criminal / Evidentiary Voir Dire Ruling During Trial
Outcome
Orders made regarding admissibility of statements and exhibits; some tenders admitted, one rejected.
Legal Topics
['admissibility of Hearsay Evidence' 'unavailable Witnesses' 'physical or Mental Incapacity in Evidence Law']
['criminal Law' 'evidence'] ['admissibility of Hearsay Evidence' 'unavailable Witnesses' 'physical or Mental Incapacity in Evidence Law']

Case Brief

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Procedural Posture

Criminal / Evidentiary Voir Dire Ruling During Trial

Legal Issues

  1. 1 ['Whether statements from unavailable witnesses can be admitted under s 65 of the Evidence Act 1995 due to physical or mental incapacity' 'Whether it was not reasonably practicable to overcome the inability of the witnesses to give evidence']

Ratio Decidendi

The statements of Paul Kohout and Guillermo Guzman were admitted as both were found, on unchallenged medical evidence, to be mentally or physically unable to give evidence and it was not reasonably practicable to overcome that inability. The statement of Jose Capparelli was not admitted because the only evidence of unavailability related to inability to travel and a mild cognitive impairment which did not preclude giving evidence, especially as giving evidence by AVL was practicable.

Court Disposition

Orders made regarding admissibility of statements and exhibits; some tenders admitted, one rejected.

Orders

  • ['The statement of Paul Kohout dated 11 November 2014, previously Exhibit VD42, admitted and marked Exhibit 686.' 'The running sheet numbered 760/16 dated 14 February 1985, with three attached photographs, added to Exhibit 686.' 'The statement of Guillermo Guzman dated 8 January 1986, formerly Exhibit VD46, admitted...