R v Bagster [2022] NSWDC 300

R v Bagster [2022] NSWDC 300

Section 65(3) Evidence Act 1995 is subject to the hearsay rule and the s 62 limitation to first-hand hearsay. Although Ms Wright's previous evidence could be tendered by transcript, the transcript could include only her representations of matters she saw, heard or otherwise perceived. Portions in which Ms Wright repeated Jane Birch's assertions about what the accused did to her were not admissible under s 65(3) because they were not within Ms Wright's personal knowledge.

Jurisdiction
Australia
Judgment Date
17 May 2022
Procedural Posture
Criminal Trial for Unlawful Killing / Voir Dire Procedural Ruling on Admissibility of Hearsay Evidence at Retrial
Outcome
The deceased witness's statement could be tendered at trial only as edited in accordance with the defence proposal.
Legal Topics
['unlawful Killing' 'hearsay Rule' 'unavailable Witnesses' 'evidence From Previous Proceedings' 'first Hand Hearsay' 'tender of Trial Transcript']
['criminal Law' 'criminal Procedure' 'evidence'] ['unlawful Killing' 'hearsay Rule' 'unavailable Witnesses' 'evidence From Previous Proceedings' 'first Hand Hearsay' 'tender of Trial Transcript']

Case Brief

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Procedural Posture

Criminal Trial for Unlawful Killing / Voir Dire Procedural Ruling on Admissibility of Hearsay Evidence at Retrial

Legal Issues

  1. 1 ["Whether the prosecution could tender at the retrial a transcript of Christine Wright's evidence from the first trial after Ms Wright became unavailable." "Whether s 65(3) Evidence Act 1995 permits admission of Ms Wright's previous evidence insofar as it repeated Jane Birch's hearsay representations." 'Whether s 62 Evidence Act 1995 limits s 65(3) to previous representations made by a person with personal knowledge of the asserted fact.' 'Whether the impugned evidence should be excluded under s 137 Evidence Act 1995 if otherwise admissible.']

Ratio Decidendi

Section 65(3) Evidence Act 1995 is subject to the hearsay rule and the s 62 limitation to first-hand hearsay. Although Ms Wright's previous evidence could be tendered by transcript, the transcript could include only her representations of matters she saw, heard or otherwise perceived. Portions in which Ms Wright repeated Jane Birch's assertions about what the accused did to her were not admissible under s 65(3) because they were not within Ms Wright's personal knowledge.

Court Disposition

The deceased witness's statement could be tendered at trial only as edited in accordance with the defence proposal.

Orders

  • ["The Prosecution can only tender those portions of Ms Wright's evidence from the first trial that set out her representations of what she saw, heard or otherwise perceived- as per VD Exhibit C."]