R v Mackie (No 5) [2019] NSWSC 458

R v Mackie (No 5) [2019] NSWSC 458

The telephone intercept extract was relevant to the context of events and gossip in Bega after the deceased's body was found. Mr Webber was deceased and therefore unavailable, so the extract was admissible under s 65(8) of the Evidence Act 1995 (NSW) as an exception to the hearsay rule. The Crown's concerns about jury confusion or misuse did not provide a valid basis to exclude it because the rumour-mill and small town gossip context had been established by the evidence and could be addressed through counsel's submissions.

Jurisdiction
Australia
Judgment Date
24 April 2019
Procedural Posture
Criminal Trial / Procedural Ruling on Admissibility of Telephone Intercept Evidence
Outcome
Telephone intercept evidence admissible
Legal Topics
['telephone Intercept Evidence' 'relevance' 'hearsay' 'exceptions to the Hearsay Rule' 'unavailable Maker' 'consciousness of Guilt']
['evidence' 'criminal Law'] ['telephone Intercept Evidence' 'relevance' 'hearsay' 'exceptions to the Hearsay Rule' 'unavailable Maker' 'consciousness of Guilt']

Case Brief

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Procedural Posture

Criminal Trial / Procedural Ruling on Admissibility of Telephone Intercept Evidence

Legal Issues

  1. 1 ['Whether an extract from a telephone intercept should be admitted into evidence and played to the jury.' 'Whether the telephone intercept extract was relevant.' 'Whether the telephone intercept extract was admissible under s 65(8) of the Evidence Act 1995 (NSW) as an exception to the hearsay rule.' 'Whether there was a valid basis to exclude the telephone intercept extract because it might confuse or be misused by the jury.']

Ratio Decidendi

The telephone intercept extract was relevant to the context of events and gossip in Bega after the deceased's body was found. Mr Webber was deceased and therefore unavailable, so the extract was admissible under s 65(8) of the Evidence Act 1995 (NSW) as an exception to the hearsay rule. The Crown's concerns about jury confusion or misuse did not provide a valid basis to exclude it because the rumour-mill and small town gossip context had been established by the evidence and could be addressed through counsel's submissions.

Court Disposition

Telephone intercept evidence admissible

Orders

  • ['Evidence can be led of the telephone intercept because it is relevant, it is admissible under s 65(8) of the Evidence Act and there is no valid basis raised by the Crown upon which to exclude it.']