R v Wilson [2020] NSWDC 548

R v Wilson [2020] NSWDC 548

The Crown did not establish that all reasonable steps had been taken to find Corey Futcher or procure his attendance. The officer in charge had not contacted the witness about attending trial, had not made inquiries of several potential information sources or associates, and there had been an opportunity to serve a subpoena while Corey Futcher was in custody. Because Corey Futcher was not shown to be 'not available', s 65 was not enlivened and the police statement could not be admitted.

Jurisdiction
Australia
Judgment Date
14 September 2020
Procedural Posture
Criminal / Crown Application During Trial to Admit Part of a Police Statement Under S 65(2) of the Evidence Act 1995 (nsw) Where the Witness Did Not Attend
Outcome
Crown application refused.
Legal Topics
['hearsay Evidence' 'witness Availability' 'police Statement' 'reasonable Steps to Locate or Secure Attendance of Witness' 'evidence Act 1995 (nsw) S 65' 'evidence Act 1995 (nsw) S 67' 'evidence Act 1995 (nsw) S 137']
['criminal Law' 'evidence'] ['hearsay Evidence' 'witness Availability' 'police Statement' 'reasonable Steps to Locate or Secure Attendance of Witness' 'evidence Act 1995 (nsw) S 65' 'evidence Act 1995 (nsw) S 67' 'evidence Act 1995 (nsw) S 137']

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Procedural Posture

Criminal / Crown Application During Trial to Admit Part of a Police Statement Under S 65(2) of the Evidence Act 1995 (nsw) Where the Witness Did Not Attend

Legal Issues

  1. 1 ["Whether Corey Futcher was 'not available' within cl 4 of Part 2 of the Dictionary to the Evidence Act 1995 (NSW)." 'Whether the Crown had taken all reasonable steps to find Corey Futcher or secure or compel his attendance.' "Whether s 65(2) of the Evidence Act 1995 (NSW) was enlivened to admit part of Corey Futcher's police statement as an exception to the hearsay rule." 'Whether it was necessary to consider ss 67 or 137 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The Crown did not establish that all reasonable steps had been taken to find Corey Futcher or procure his attendance. The officer in charge had not contacted the witness about attending trial, had not made inquiries of several potential information sources or associates, and there had been an opportunity to serve a subpoena while Corey Futcher was in custody. Because Corey Futcher was not shown to be 'not available', s 65 was not enlivened and the police statement could not be admitted.

Court Disposition

Crown application refused.

Orders

  • ["The Crown's application is refused."]