R v Ian DACEY; R v Lee DACEY [2013] NSWSC 1875

R v Ian DACEY; R v Lee DACEY [2013] NSWSC 1875

The deceased's statements immediately after the distressing telephone call, his statements to his brother Tony, and his statements to Dr Sinnaduray were admissible under s 65(2)(b) because they were made at or shortly after the relevant events and in circumstances making deliberate fabrication unlikely. Their probative value was quite high and the danger of unfair prejudice did not outweigh that probative value under s 137. The statements to Senior Constable Grob were not admissible because they were made about 30 hours after the stabbing and about 19 hours after the deceased became conscious and coherent, were a detailed narrative to a person in authority, were not formalised or signed,...

Jurisdiction
Australia
Judgment Date
15 November 2013
Procedural Posture
Common Law Criminal; Murder Trial / Preliminary Evidential Rulings on Admissibility of Hearsay Evidence Proposed to Be Tendered in the Crown Case
Outcome
Some hearsay evidence admitted and the hearsay statements to Senior Constable Grob rejected.
Legal Topics
['hearsay Evidence' 'unavailable Maker' 'previous Representations by Deceased' 'evidence Act 1995 S 65(2)(b)' 'evidence Act 1995 S 65(2)(c)' 'evidence Act 1995 Ss 135 and 137' 'unfair Prejudice' 'voir Dire' 'joint Criminal Enterprise' 'accessorial Liability']
['criminal Law' 'evidence Law'] ['hearsay Evidence' 'unavailable Maker' 'previous Representations by Deceased' 'evidence Act 1995 S 65(2)(b)' 'evidence Act 1995 S 65(2)(c)' 'evidence Act 1995 Ss 135 and 137' 'unfair Prejudice' 'voir Dire' 'joint Criminal Enterprise' 'accessorial Liability']

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Procedural Posture

Common Law Criminal; Murder Trial / Preliminary Evidential Rulings on Admissibility of Hearsay Evidence Proposed to Be Tendered in the Crown Case

Legal Issues

  1. 1 ['Whether hearsay statements made by the deceased in hospital were admissible under s 65(2)(b) of the Evidence Act 1995 as statements made when or shortly after the asserted fact occurred and in circumstances making fabrication unlikely.' 'Whether any hearsay statements were admissible under s 65(2)(c) of the Evidence Act 1995 as made in circumstances making reliability highly probable.' 'Whether otherwise admissible hearsay evidence should be rejected under ss 135 or 137 of the Evidence Act 1995 because of unfair prejudice.' "Whether the deceased's statements to Senior Constable Grob about the stabbing were made shortly after the events and in circumstances making fabrication unlikely."]

Ratio Decidendi

The deceased's statements immediately after the distressing telephone call, his statements to his brother Tony, and his statements to Dr Sinnaduray were admissible under s 65(2)(b) because they were made at or shortly after the relevant events and in circumstances making deliberate fabrication unlikely. Their probative value was quite high and the danger of unfair prejudice did not outweigh that probative value under s 137. The statements to Senior Constable Grob were not admissible because they were made about 30 hours after the stabbing and about 19 hours after the deceased became conscious and coherent, were a detailed narrative to a person in authority, were not formalised or signed,...

Court Disposition

Some hearsay evidence admitted and the hearsay statements to Senior Constable Grob rejected.

Orders

  • ['The pressed hearsay statements that are the subject of objection to Nurse Revett are admissible pursuant to s 65(2)(b) of the Evidence Act, and they are not rejected pursuant to ss 135 or 137 of the same Act.' 'The pressed hearsay statements said to be to the brother of the deceased, Tony, on the telephone that...