R v Rogers [2018] NSWSC 1216

R v Rogers [2018] NSWSC 1216

The objected-to statements in the emergency department record were inadmissible because the Crown did not establish the requirements of s 65(2)(b) or s 65(2)(c): in the circumstances of the marital breakdown, extra-marital relationship, suicide attempt, and eight hour lapse, the representations were not made shortly after the asserted facts in circumstances making fabrication unlikely, nor in circumstances making reliability highly probable. Section 66A did not apply because the discrete statements about the accused handing the deceased Temazepam and asking her to take it were not contemporaneous representations about the deceased's health, feelings, sensations, intention, knowledge or...

Jurisdiction
Australia
Judgment Date
08 August 2018
Procedural Posture
Criminal Proceeding / Pre Trial Evidentiary Ruling on Admissibility of Previous Representations in an Emergency Department Record
Outcome
The aspect of the emergency department record in issue is not to be led from the witness.
Legal Topics
['hearsay' 'previous Representations' 'unavailability of Maker' 'contemporaneous Statements About Health, Knowledge or State of Mind' 'section 67 Notice']
['criminal Law' 'evidence'] ['hearsay' 'previous Representations' 'unavailability of Maker' 'contemporaneous Statements About Health, Knowledge or State of Mind' 'section 67 Notice']

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 Proceeding / Pre Trial Evidentiary Ruling on Admissibility of Previous Representations in an Emergency Department Record

Legal Issues

  1. 1 ['Whether representations made by the deceased to an emergency department doctor were admissible under Evidence Act 1995 (NSW) s 65(2)(b).' 'Whether the representations were made in circumstances making it highly probable that they were reliable under Evidence Act 1995 (NSW) s 65(2)(c).' "Whether the representations were admissible as contemporaneous statements about the deceased's health, feelings, sensations, intention, knowledge or state of mind under Evidence Act 1995 (NSW) s 66A."]

Ratio Decidendi

The objected-to statements in the emergency department record were inadmissible because the Crown did not establish the requirements of s 65(2)(b) or s 65(2)(c): in the circumstances of the marital breakdown, extra-marital relationship, suicide attempt, and eight hour lapse, the representations were not made shortly after the asserted facts in circumstances making fabrication unlikely, nor in circumstances making reliability highly probable. Section 66A did not apply because the discrete statements about the accused handing the deceased Temazepam and asking her to take it were not contemporaneous representations about the deceased's health, feelings, sensations, intention, knowledge or...

Court Disposition

The aspect of the emergency department record in issue is not to be led from the witness.

Orders

  • ['The two sentences contained in the medical records of Anne Rogers stating that her husband handed her a bottle of his Temazepam tablets asking her to take it and that Anne took all 22 tablets of 10mg Temazepam at about 4pm in front of her husband are inadmissible.' 'The aspect of the emergency department record in...