R v El Masri [2010] NSWSC 1277

R v El Masri [2010] NSWSC 1277

Ms Kurdieh was not available to give evidence despite reasonable steps by the Crown. The relevant representations in her induced ERISP were against her interests because they tended to show she had lied earlier and, if necessary, tended to show an uncharged offence. The circumstances of the induced statement, including loss of protection if false and the use of CCTV photographs placing her at Chahine's Restaurant, made it likely the representations were reliable. The evidence had high probative value and, with appropriate jury directions, its probative value was not outweighed by unfair prejudice under s 137 nor substantially outweighed by concerns under s 135. Portions of the ERISP were...

Jurisdiction
Australia
Judgment Date
05 November 2010
Procedural Posture
Criminal Proceeding; Murder and Wounding With Intent to Cause Grievous Bodily Harm / Pre Trial Preliminary Ruling on Admissibility of Portions of an Induced ERISP
Outcome
Leave granted to the Crown to adduce portions of the induced statement of Ms Kurdieh recorded by police on 16 February 2009.
Legal Topics
['hearsay' 'unavailable Witness' 'induced Statement' 'erisp' 'statements Against Interest' 'probative Value and Unfair Prejudice']
['criminal Law' 'evidence'] ['hearsay' 'unavailable Witness' 'induced Statement' 'erisp' 'statements Against Interest' 'probative Value and Unfair Prejudice']

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Procedural Posture

Criminal Proceeding; Murder and Wounding With Intent to Cause Grievous Bodily Harm / Pre Trial Preliminary Ruling on Admissibility of Portions of an Induced ERISP

Legal Issues

  1. 1 ['Whether Farah Kurdieh was not available to give evidence for the purposes of s 65 of the Evidence Act 1995.' "Whether representations in Ms Kurdieh's induced ERISP were made against her interests within s 65(2)(d) and s 65(7) of the Evidence Act 1995." 'Whether the representations were made in circumstances that made it likely they were reliable.' 'Whether the evidence should be excluded under s 135 or s 137 of the Evidence Act 1995.']

Ratio Decidendi

Ms Kurdieh was not available to give evidence despite reasonable steps by the Crown. The relevant representations in her induced ERISP were against her interests because they tended to show she had lied earlier and, if necessary, tended to show an uncharged offence. The circumstances of the induced statement, including loss of protection if false and the use of CCTV photographs placing her at Chahine's Restaurant, made it likely the representations were reliable. The evidence had high probative value and, with appropriate jury directions, its probative value was not outweighed by unfair prejudice under s 137 nor substantially outweighed by concerns under s 135. Portions of the ERISP were...

Court Disposition

Leave granted to the Crown to adduce portions of the induced statement of Ms Kurdieh recorded by police on 16 February 2009.

Orders

  • ['Grant leave to the Crown to adduce as evidence portions of the induced statement of Ms Kurdieh recorded by the police on 16 February 2009, subject to the qualifications expressed in the reasons and to any further argument about specific parts objected to on another basis.']