R v Popovic; R v Koloamatangi (No 4) [2017] NSWSC 1137

R v Popovic; R v Koloamatangi (No 4) [2017] NSWSC 1137

The proposed representations were hearsay and did not fall within s 65(2)(d) because, although assisting police may have been against Emily Popovic's interests, the representations themselves were not directly against her interests. Nor did they fall within s 65(2)(c): having regard to the five-year delay, changes in her accounts, her circumstances and mental state, and the personal risk involved, the circumstances made the representations likely reliable but did not make it highly probable that each was reliable. The evidence was therefore inadmissible.

Jurisdiction
Australia
Judgment Date
29 August 2017
Procedural Posture
Criminal Trial for Murder / Crown Application Under S 65(2)(c) and (d) of the Evidence Act 1995 (nsw) to Adduce Hearsay Evidence During Jury Trial
Outcome
The Crown application was refused; the hearsay evidence of Emily Popovic is inadmissible.
Legal Topics
['hearsay' 'unavailable Maker' 'statements Against Interest' 'reliability of Previous Representations' 'evidence Act 1995 (nsw) S 65']
['criminal Law' 'evidence'] ['hearsay' 'unavailable Maker' 'statements Against Interest' 'reliability of Previous Representations' 'evidence Act 1995 (nsw) S 65']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Trial for Murder / Crown Application Under S 65(2)(c) and (d) of the Evidence Act 1995 (nsw) to Adduce Hearsay Evidence During Jury Trial

Legal Issues

  1. 1 ['Whether the hearsay evidence contained in two 2012 police statements made by deceased witness Emily Popovic was admissible under s 65(2)(d) of the Evidence Act 1995 (NSW) as representations against her interests made in circumstances making them likely to be reliable.' 'Whether the same representations were admissible under s 65(2)(c) of the Evidence Act 1995 (NSW) as having been made in circumstances making it highly probable that they were reliable.' 'If admissible under s 65, whether the evidence should be excluded under s 137 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The proposed representations were hearsay and did not fall within s 65(2)(d) because, although assisting police may have been against Emily Popovic's interests, the representations themselves were not directly against her interests. Nor did they fall within s 65(2)(c): having regard to the five-year delay, changes in her accounts, her circumstances and mental state, and the personal risk involved, the circumstances made the representations likely reliable but did not make it highly probable that each was reliable. The evidence was therefore inadmissible.

Court Disposition

The Crown application was refused; the hearsay evidence of Emily Popovic is inadmissible.

Orders

  • ['The hearsay evidence of Emily Popovic is inadmissible.']