R v Askarou [2024] NSWDC 552

R v Askarou [2024] NSWDC 552

The Crown did not, on the evidence, take all reasonable steps to secure WL's attendance and give evidence at trial; the efforts were found to be limited and insufficient given the significance of his evidence and the nature of the case. Accordingly, WL is not established as 'unavailable' for the purposes of s65(3) Evidence Act 1995 (NSW), and the Crown's application to admit his prior evidence was dismissed.

Parties
Prosecution: Crown; Accused: Mr Askarou
Jurisdiction
Australia
Judgment Date
23 October 2024
Procedural Posture
Criminal / Pre Trial Notice of Motion Regarding Witness Availability and Admissibility of Prior Evidence
Outcome
Crown's Notice of Motion dismissed.
Legal Topics
Hearsay Evidence, Unavailability of Witness, Reasonable Steps to Secure Attendance, Pre Trial Procedural Applications
Criminal Law Evidence Law Hearsay Evidence Unavailability of Witness Reasonable Steps to Secure Attendance Pre Trial Procedural Applications

Case Brief

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Parties

Crown

Prosecution

Mr Askarou

Accused

Procedural Posture

Criminal / Pre Trial Notice of Motion Regarding Witness Availability and Admissibility of Prior Evidence

Legal Issues

  1. 1 Whether the Crown took 'all reasonable steps' to secure the attendance of WL for the purposes of s65(3) Evidence Act 1995 (NSW)
  2. 2 Whether WL is 'unavailable' within the meaning of s65(3) and Dictionary to the Evidence Act 1995 (NSW)
  3. 3 Whether the transcript of WL's previous evidence could be admitted under the hearsay exception

Ratio Decidendi

The Crown did not, on the evidence, take all reasonable steps to secure WL's attendance and give evidence at trial; the efforts were found to be limited and insufficient given the significance of his evidence and the nature of the case. Accordingly, WL is not established as 'unavailable' for the purposes of s65(3) Evidence Act 1995 (NSW), and the Crown's application to admit his prior evidence was dismissed.

Court Disposition

Crown's Notice of Motion dismissed.

Orders

  • The Crown's Notice of Motion seeking to admit the prior evidence of WL pursuant to s65(3) Evidence Act 1995 is dismissed.