R v Clare [2022] NSWDC 21

R v Clare [2022] NSWDC 21

The proposed representation had only slight probative value because Mr Morley gave no foundation for asserting what Ms Clare knew, its exculpatory effect was weak in the context of the evidence already led, and any proper context would risk exposing prejudicial admissions by Mr Morley. In the joint trial, limiting directions would not adequately cure the unfair prejudice to Mr Morley, and the evidence had already been found improperly obtained in breach of his Law Enforcement (Powers and Responsibilities) Act 2000 rights. The probative value and desirability of admitting the evidence did not justify admission under ss 135 or 138 of the Evidence Act 1995.

Jurisdiction
Australia
Judgment Date
24 January 2022
Procedural Posture
Criminal Trial for Specially Aggravated Detain for Advantage, With an Additional Related Proceeds of Crime Count for Mr Ilievski / In Trial Application by Ms Clare to Revisit an Earlier Evidentiary Ruling Excluding Mr Morley's Police Interviews and to Adduce Part of Mr Morley's Second Interview
Outcome
Application refused; earlier ruling excluding Mr Morley's interview not reversed.
Legal Topics
['specially Aggravated Detain for Advantage' 'co Accused Admissions' 'hearsay Exception for Defendants' 'improperly Obtained Evidence' 'discretionary Exclusion' 'limiting Directions in Joint Trials' 'probative Value and Unfair Prejudice']
['criminal Law' 'criminal Procedure' 'evidence'] ['specially Aggravated Detain for Advantage' 'co Accused Admissions' 'hearsay Exception for Defendants' 'improperly Obtained Evidence' 'discretionary Exclusion' 'limiting Directions in Joint Trials' 'probative Value and Unfair Prejudice']

Case Brief

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Procedural Posture

Criminal Trial for Specially Aggravated Detain for Advantage, With an Additional Related Proceeds of Crime Count for Mr Ilievski / In Trial Application by Ms Clare to Revisit an Earlier Evidentiary Ruling Excluding Mr Morley's Police Interviews and to Adduce Part of Mr Morley's Second Interview

Legal Issues

  1. 1 ["Whether Ms Clare could adduce a portion of Mr Morley's previously excluded police interview in her trial only." 'Whether the proposed representation was admissible under s 65(8) of the Evidence Act 1995 despite being hearsay.' "Whether any use of the evidence could be limited to Ms Clare's trial under s 136 of the Evidence Act 1995 in the context of a joint trial." 'Whether the probative value of the proposed evidence was substantially outweighed by unfair prejudice under s 135 of the Evidence Act 1995.' 'Whether the desirability of admitting the evidence outweighed the undesirability of admitting improperly obtained evidence under s 138 of the Evidence Act 1995.']

Ratio Decidendi

The proposed representation had only slight probative value because Mr Morley gave no foundation for asserting what Ms Clare knew, its exculpatory effect was weak in the context of the evidence already led, and any proper context would risk exposing prejudicial admissions by Mr Morley. In the joint trial, limiting directions would not adequately cure the unfair prejudice to Mr Morley, and the evidence had already been found improperly obtained in breach of his Law Enforcement (Powers and Responsibilities) Act 2000 rights. The probative value and desirability of admitting the evidence did not justify admission under ss 135 or 138 of the Evidence Act 1995.

Court Disposition

Application refused; earlier ruling excluding Mr Morley's interview not reversed.

Orders

  • ['I will not reverse my earlier ruling.' "I will not allow the proposed evidence to be led in Ms Clare's trial."]