R v Ian DACEY; R v Lee DACEY (No 2) [2013] NSWSC 1876

R v Ian DACEY; R v Lee DACEY (No 2) [2013] NSWSC 1876

Leave was granted because the witness's trial evidence was inconsistent with her statement of 6 February 2012, the statement was a relevant and highly probative reflection of what Lee Dacey had said rather than merely the witness's opinion or interpretation, and the dangers of misleading the jury or unfair prejudice did not warrant exclusion. The evidence was not admitted against Ian Dacey and would be the subject of directions, so possible prejudice to him did not justify exclusion.

Jurisdiction
Australia
Judgment Date
25 November 2013
Procedural Posture
Common Law Criminal; Murder Trial Evidentiary Ruling / Application by the Crown Under S 38 of the Evidence Act 1995 to Cross Examine a Prosecution Witness About a Prior Inconsistent Statement
Outcome
Crown granted leave to cross-examine the witness about the prior inconsistent statement; evidence not excluded.
Legal Topics
['unfavourable Witnesses' 'prior Inconsistent Statements' 'leave to Cross Examine Own Witness' 'relevance' 'lay Opinion Evidence' 'unfair Prejudice' 'discretionary Exclusion' 'voir Dire']
['evidence Law' 'criminal Law' 'criminal Procedure'] ['unfavourable Witnesses' 'prior Inconsistent Statements' 'leave to Cross Examine Own Witness' 'relevance' 'lay Opinion Evidence' 'unfair Prejudice' 'discretionary Exclusion' 'voir Dire']

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Procedural Posture

Common Law Criminal; Murder Trial Evidentiary Ruling / Application by the Crown Under S 38 of the Evidence Act 1995 to Cross Examine a Prosecution Witness About a Prior Inconsistent Statement

Legal Issues

  1. 1 ['Whether the Crown should be granted leave under s 38 of the Evidence Act 1995 to question Ms Rachael Ella Caldwell as though cross-examining her about a prior inconsistent statement.' "Whether the witness's statement of 6 February 2012 about things said by Lee Dacey was merely her interpretation or opinion rather than a reflection of what he said." 'Whether the evidence was irrelevant, inadmissible as lay opinion evidence, misleading or confusing, or unfairly prejudicial under ss 55, 76, 135 and 137 of the Evidence Act 1995.' 'Whether admission of the evidence would unfairly prejudice Ian Dacey where it was not tendered or admitted against him.']

Ratio Decidendi

Leave was granted because the witness's trial evidence was inconsistent with her statement of 6 February 2012, the statement was a relevant and highly probative reflection of what Lee Dacey had said rather than merely the witness's opinion or interpretation, and the dangers of misleading the jury or unfair prejudice did not warrant exclusion. The evidence was not admitted against Ian Dacey and would be the subject of directions, so possible prejudice to him did not justify exclusion.

Court Disposition

Crown granted leave to cross-examine the witness about the prior inconsistent statement; evidence not excluded.

Orders

  • ['The Crown is granted leave to question the witness, Ms Caldwell, as though the Crown were cross-examining the witness about whether the witness made a prior inconsistent statement on 6 February 2012 with regard to things said by Mr Lee Dacey.']