R v Tarantino [2019] NSWSC 939

R v Tarantino [2019] NSWSC 939

Ms Third's statement was not made "shortly after" the events she observed because the representations were made between 33 and 38 hours later, so s 65(2)(b) was not satisfied. However, the disputed representations about the person's relative youth, approximate age, height, build, hair and clothing were made in circumstances making it highly probable that they were reliable: Ms Third had an opportunity to observe the person while walking from about 90 feet to about 20 feet away, regarded the scene as unusual, recorded part of the vehicle registration, and did not purport to identify the person. The age descriptions were admissible lay opinion and were not rejected under s 137. The disputed...

Jurisdiction
Australia
Judgment Date
23 July 2019
Procedural Posture
Criminal Evidence Ruling / Objection to Crown Tender of Part of Deceased Witness Ms Elaine Third's Statement on Voir Dire
Outcome
Evidence of disputed representations admitted.
Legal Topics
['hearsay' 'deceased Witness' 'previous Representation' 'evidence Act 1995 S 65(2)(b)' 'evidence Act 1995 S 65(2)(c)' 'lay Opinion' 'unfair Prejudice']
['evidence' 'criminal Law'] ['hearsay' 'deceased Witness' 'previous Representation' 'evidence Act 1995 S 65(2)(b)' 'evidence Act 1995 S 65(2)(c)' 'lay Opinion' 'unfair Prejudice']

Case Brief

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Procedural Posture

Criminal Evidence Ruling / Objection to Crown Tender of Part of Deceased Witness Ms Elaine Third's Statement on Voir Dire

Legal Issues

  1. 1 ['Whether Ms Third\'s representations made between 33 and 38 hours after the asserted facts were made "shortly after" the asserted facts for the purposes of Evidence Act 1995 s 65(2)(b).' 'Whether representations describing the observed person as a "young female" or "young girl" and describing her age and physical characteristics were made in circumstances that make it highly probable that the representations are reliable under Evidence Act 1995 s 65(2)(c).' 'Whether the descriptions of relative age were inadmissible opinion evidence or admissible lay opinion.' 'Whether the disputed parts of the statement should be rejected under Evidence Act 1995 s 137.']

Ratio Decidendi

Ms Third's statement was not made "shortly after" the events she observed because the representations were made between 33 and 38 hours later, so s 65(2)(b) was not satisfied. However, the disputed representations about the person's relative youth, approximate age, height, build, hair and clothing were made in circumstances making it highly probable that they were reliable: Ms Third had an opportunity to observe the person while walking from about 90 feet to about 20 feet away, regarded the scene as unusual, recorded part of the vehicle registration, and did not purport to identify the person. The age descriptions were admissible lay opinion and were not rejected under s 137. The disputed...

Court Disposition

Evidence of disputed representations admitted.

Orders

  • ['The representations by Ms Third on 28 July 1998 that the person she observed was a "young girl" or "young female" will be admitted.' 'The representations recorded in paragraph 11 of Ms Third\'s statement dated 28 July 1998, save for the reference to the person observed being "foreign", will be admitted.']