R v Rossi-Murray; R v Byrnes [2019] NSWSC 479

R v Rossi-Murray; R v Byrnes [2019] NSWSC 479

James Millar was competent and available to give evidence because he understood the questions and gave intelligible answers, and the Crown did not prove that any mental or physical inability made him unavailable. Section 65 was therefore unavailable. His lack of recollection, in the circumstances of asserted head injuries and without denying the statements or their truth, was not a prior inconsistent statement. Although the Crown established that his evidence was unfavourable and that he could reasonably be supposed to have knowledge about which he was not making a genuine attempt to give evidence, leave to cross-examine and adduce the statements was refused because the process would be...

Jurisdiction
Australia
Judgment Date
02 May 2019
Procedural Posture
Criminal Proceedings; Procedural and Other Ruling / Voir Dire Application by the Crown for Leave to Cross Examine James Millar Under S 38 of the Evidence Act 1995 (nsw) and to Adduce Prior Representations in His Statements
Outcome
The Crown's applications were rejected.
Legal Topics
['unfavourable Witnesses' 'hearsay' 'competence and Availability of Witnesses' 'prior Inconsistent Statements' 'discretion to Grant Leave' 'unfair Prejudice' 'prisoner Witness Reliability Warnings']
['criminal Law' 'evidence'] ['unfavourable Witnesses' 'hearsay' 'competence and Availability of Witnesses' 'prior Inconsistent Statements' 'discretion to Grant Leave' 'unfair Prejudice' 'prisoner Witness Reliability Warnings']

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Procedural Posture

Criminal Proceedings; Procedural and Other Ruling / Voir Dire Application by the Crown for Leave to Cross Examine James Millar Under S 38 of the Evidence Act 1995 (nsw) and to Adduce Prior Representations in His Statements

Legal Issues

  1. 1 ['Whether James Millar was competent to give evidence despite asserted memory problems from head injuries.' 'Whether James Millar was unavailable to give evidence so that s 65 of the Evidence Act 1995 (NSW) could apply to his previous statements.' 'Whether the Crown should have leave under s 38 of the Evidence Act 1995 (NSW) to question James Millar as though cross-examining him.' "Whether James Millar's previous statements were prior inconsistent statements for the purposes of ss 38 and 43 of the Evidence Act 1995 (NSW)." 'Whether s 66 of the Evidence Act 1995 (NSW) permitted admission of the previous representations where the witness was available.' 'Whether leave should be refused under s 192, or the evidence excluded under s 137, because the danger of unfair prejudice outweighed probative value.']

Ratio Decidendi

James Millar was competent and available to give evidence because he understood the questions and gave intelligible answers, and the Crown did not prove that any mental or physical inability made him unavailable. Section 65 was therefore unavailable. His lack of recollection, in the circumstances of asserted head injuries and without denying the statements or their truth, was not a prior inconsistent statement. Although the Crown established that his evidence was unfavourable and that he could reasonably be supposed to have knowledge about which he was not making a genuine attempt to give evidence, leave to cross-examine and adduce the statements was refused because the process would be...

Court Disposition

The Crown's applications were rejected.

Orders

  • ['The application for leave to cross-examine the witness James Millar under s 38 of the Evidence Act 1995 (NSW) is rejected.' 'The application for leave to adduce the prior representation made in the statements of the witness James Millar is rejected.']