R v Lewis (No 2) [2018] NSWDC 273

R v Lewis (No 2) [2018] NSWDC 273

Ms Fauvette was not available to give evidence after the s 18 ruling, and her prior representations were highly relevant to rebut the accused's electronically recorded interview. The representations were made within three weeks of the explosion, in circumstances making them highly probably reliable, and were also capable of being against her interest because of her ongoing relationship with and potential dependence on the accused. The requirements of s 65(2)(b), (c) and (d) were established. The accused's s 137 objection failed because the lack of cross-examination is inherent in the operation of s 65, directions could be given to the jury about the unsworn and untested nature of the...

Jurisdiction
Australia
Judgment Date
19 September 2018
Procedural Posture
Criminal Trial / Procedural Ruling During Trial on the Crown's Application Under S 65 of the Evidence Act 1995 to Admit Prior Representations, and the Accused's Objection Under S 137
Outcome
The representations were admitted with the excision of paragraph [12] of the statement.
Legal Topics
['hearsay Evidence' 'previous Representations' 'unavailability of Witness' 'compellability of De Facto Partner' 'exclusion of Evidence for Unfair Prejudice']
['criminal Law' 'evidence' 'criminal Procedure'] ['hearsay Evidence' 'previous Representations' 'unavailability of Witness' 'compellability of De Facto Partner' 'exclusion of Evidence for Unfair Prejudice']

Case Brief

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Procedural Posture

Criminal Trial / Procedural Ruling During Trial on the Crown's Application Under S 65 of the Evidence Act 1995 to Admit Prior Representations, and the Accused's Objection Under S 137

Legal Issues

  1. 1 ['Whether Priscilla Fauvette, having been ruled not compellable under s 18 of the Evidence Act 1995, was not available to give evidence for the purposes of s 65.' "Whether the prior representations in paragraphs [3] to [14] of Ms Fauvette's statement of 19 January 2016 satisfied s 65(2)(b), (c) or (d) of the Evidence Act 1995." 'Whether the statement should be excluded under s 137 of the Evidence Act 1995 because its probative value was outweighed by the danger of unfair prejudice to the accused.' 'Whether paragraph [12] of the statement should be excised.']

Ratio Decidendi

Ms Fauvette was not available to give evidence after the s 18 ruling, and her prior representations were highly relevant to rebut the accused's electronically recorded interview. The representations were made within three weeks of the explosion, in circumstances making them highly probably reliable, and were also capable of being against her interest because of her ongoing relationship with and potential dependence on the accused. The requirements of s 65(2)(b), (c) and (d) were established. The accused's s 137 objection failed because the lack of cross-examination is inherent in the operation of s 65, directions could be given to the jury about the unsworn and untested nature of the...

Court Disposition

The representations were admitted with the excision of paragraph [12] of the statement.

Orders

  • ['I admit the representations in question with the excision of [12] of the statement.']