R v Patel (No 2) [2018] NSWSC 342

R v Patel (No 2) [2018] NSWSC 342

Ms Wilson's evidence was relevant because she was awake, located near 9/167 Bestic St, and described seeing and hearing matters around the relevant time. It would be artificial and unfair to excise only the parts of her account describing what she saw through the partly open curtains while retaining the evidence about the overhead light. Her evidence was not so unreliable or unrealistic that it should be excluded, and its probative value was not outweighed by the danger of unfair prejudice to the Accused. The aspects of Ms Wilson's evidence suggesting a male and female interaction in the identified unit were unfavourable to the Crown and met s 38(1)(a). The Crown was not bound by its...

Jurisdiction
Australia
Judgment Date
06 March 2018
Procedural Posture
Criminal Murder Retrial / Procedural Evidence Ruling on Defence Application to Exclude Evidence Under S 137 and Crown Application for Leave to Cross Examine an Unfavourable Witness Under S 38 of the Evidence Act 1995 (nsw)
Outcome
Defence application to exclude part of Ms Wilson's evidence refused; Crown granted limited leave to cross-examine Ms Wilson.
Legal Topics
['murder Trial' 'unfavourable Witness' 'cross Examination by Party Calling Witness' 'exclusion of Prejudicial Evidence' 'unfair Prejudice' 'advance Ruling' 'voir Dire']
['criminal Law' 'evidence'] ['murder Trial' 'unfavourable Witness' 'cross Examination by Party Calling Witness' 'exclusion of Prejudicial Evidence' 'unfair Prejudice' 'advance Ruling' 'voir Dire']

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Procedural Posture

Criminal Murder Retrial / Procedural Evidence Ruling on Defence Application to Exclude Evidence Under S 137 and Crown Application for Leave to Cross Examine an Unfavourable Witness Under S 38 of the Evidence Act 1995 (nsw)

Legal Issues

  1. 1 ["Whether part of Ms Wilson's evidence should be excluded under s 137 of the Evidence Act 1995 (NSW) because its probative value was outweighed by the danger of unfair prejudice to the Accused." 'Whether the Crown should be granted leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine Ms Wilson as an unfavourable witness.' "Whether the proposed cross-examination should be limited to Ms Wilson's identification of the apartment as the second unit from the rear of the building at 167 Bestic St, Kyeemagh."]

Ratio Decidendi

Ms Wilson's evidence was relevant because she was awake, located near 9/167 Bestic St, and described seeing and hearing matters around the relevant time. It would be artificial and unfair to excise only the parts of her account describing what she saw through the partly open curtains while retaining the evidence about the overhead light. Her evidence was not so unreliable or unrealistic that it should be excluded, and its probative value was not outweighed by the danger of unfair prejudice to the Accused. The aspects of Ms Wilson's evidence suggesting a male and female interaction in the identified unit were unfavourable to the Crown and met s 38(1)(a). The Crown was not bound by its...

Court Disposition

Defence application to exclude part of Ms Wilson's evidence refused; Crown granted limited leave to cross-examine Ms Wilson.

Orders

  • ['I refuse the application of the Defence to exclude part of the evidence of Ms Wilson pursuant to s 137 of the Evidence Act.' 'I grant leave to the Crown pursuant to s 38 of the Evidence Act to cross-examine Ms Wilson. That cross-examination is to be limited to the suggestion that she is mistaken in her...