R v WM [2019] NSWDC 860

R v WM [2019] NSWDC 860

The Crown established that all reasonable steps had been taken to find or secure the attendance of Stephanie Efu, Tim Pago and Michelle Paisa without success, so each was unavailable for s 65 purposes. The circumstances in which the statements of Tim Pago and Stephanie Efu were made shortly after the events made fabrication unlikely, and the circumstances of Michelle Paisa's recorded interview made it highly probable that the representations were reliable. The evidence was plainly probative and, in the judge-alone special hearing, the danger of unfair prejudice or misleading or confusing use did not warrant exclusion under ss 137 or 135.

Jurisdiction
Australia
Judgment Date
22 November 2019
Procedural Posture
Criminal Proceeding; Special Hearing / Voir Dire Ruling on Admissibility of Record of Interview and Witness Statements
Outcome
The Crown's application under s 65 of the Evidence Act 1995 (NSW) was granted.
Legal Topics
['special Hearing' 'hearsay' 'witness Unavailable to Give Evidence' 'previous Representations' 'unfair Prejudice' 'probative Value']
['criminal Law' 'evidence' 'criminal Procedure'] ['special Hearing' 'hearsay' 'witness Unavailable to Give Evidence' 'previous Representations' 'unfair Prejudice' 'probative Value']

Case Brief

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Procedural Posture

Criminal Proceeding; Special Hearing / Voir Dire Ruling on Admissibility of Record of Interview and Witness Statements

Legal Issues

  1. 1 ['Whether Michelle Paisa, Tim Pago and Stephanie Efu were not available to give evidence under s 65(1) of the Evidence Act 1995 (NSW).' 'Whether the representations in the witness statements of Tim Pago and Stephanie Efu were made in circumstances that make it unlikely that they were fabrications within s 65(2)(b) of the Evidence Act 1995 (NSW).' "Whether the representations in Michelle Paisa's recorded interview were made in circumstances that make it highly probable that they are reliable within s 65(2)(c) of the Evidence Act 1995 (NSW)." 'Whether the record of interview or witness statements should be excluded under s 137 or s 135 of the Evidence Act 1995 (NSW) because of unfair prejudice or danger that the evidence might be misleading or confusing.']

Ratio Decidendi

The Crown established that all reasonable steps had been taken to find or secure the attendance of Stephanie Efu, Tim Pago and Michelle Paisa without success, so each was unavailable for s 65 purposes. The circumstances in which the statements of Tim Pago and Stephanie Efu were made shortly after the events made fabrication unlikely, and the circumstances of Michelle Paisa's recorded interview made it highly probable that the representations were reliable. The evidence was plainly probative and, in the judge-alone special hearing, the danger of unfair prejudice or misleading or confusing use did not warrant exclusion under ss 137 or 135.

Court Disposition

The Crown's application under s 65 of the Evidence Act 1995 (NSW) was granted.

Orders

  • ['The recorded audio record of interview of Michelle Paisa is admitted as Exhibit M.' 'The statement of Tim Pago is admitted as Exhibit N.' 'The statement of Stephanie Efu is admitted as Exhibit O.']