R v Wiggins (No 3) [2021] NSWSC 1128

R v Wiggins (No 3) [2021] NSWSC 1128

The evidence of Mr X is admissible as first-hand hearsay under s 66(2) since Mr Ferguson's statements were found to be within his personal knowledge and fresh in memory due to the seriousness and unusual nature of the events. The statements are not admissions under the Evidence Act as Mr Ferguson is not a party to the proceedings, nor were they made in furtherance of a common purpose. The evidence is not unfairly prejudicial such that its probative value is outweighed and thus should not be excluded under s 137; an appropriate warning under s 165 will be given due to the hearsay nature.

Jurisdiction
Australia
Judgment Date
06 September 2021
Procedural Posture
Criminal / Pre Trial Evidentiary Ruling
Outcome
Application to exclude evidence dismissed; evidence of Mr X ruled admissible.
Legal Topics
['hearsay Evidence' 'exclusion of Evidence' 'admissibility of Witness Statements' 'admissions and Common Purpose' 'fresh in the Memory' 'credibility Evidence' 'probative Value Vs Unfair Prejudice']
['criminal Law' 'evidence'] ['hearsay Evidence' 'exclusion of Evidence' 'admissibility of Witness Statements' 'admissions and Common Purpose' 'fresh in the Memory' 'credibility Evidence' 'probative Value Vs Unfair Prejudice']

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Procedural Posture

Criminal / Pre Trial Evidentiary Ruling

Legal Issues

  1. 1 ['Whether the proposed evidence of Mr X is inadmissible as second-hand hearsay under the Evidence Act 1995 (NSW)' 'Whether statements made by Mr Ferguson are admissions, and if so, whether they are inadmissible as against Mr Wiggins' 'Whether the statements are admissible under exceptions to the hearsay rule—specifically s 66(2) (fresh in memory) and as credibility evidence' 'Whether the evidence should be excluded under s 137 due to unfair prejudice outweighing probative value']

Ratio Decidendi

The evidence of Mr X is admissible as first-hand hearsay under s 66(2) since Mr Ferguson's statements were found to be within his personal knowledge and fresh in memory due to the seriousness and unusual nature of the events. The statements are not admissions under the Evidence Act as Mr Ferguson is not a party to the proceedings, nor were they made in furtherance of a common purpose. The evidence is not unfairly prejudicial such that its probative value is outweighed and thus should not be excluded under s 137; an appropriate warning under s 165 will be given due to the hearsay nature.

Court Disposition

Application to exclude evidence dismissed; evidence of Mr X ruled admissible.

Orders

  • ['The objection to the admissibility of the evidence of Mr X is rejected; the evidence is ruled admissible.']