R v Smith [2020] NSWSC 1577

R v Smith [2020] NSWSC 1577

The Crown failed to establish a reasonable excuse for not recording the alleged admission as required by s 281 Criminal Procedure Act 1986 (NSW); the context of the accused's conversation with his mother rendered its admission unfair within s 90 Evidence Act 1995 (NSW); and the deceased’s post-incident statement did not satisfy the reliability or non-fabrication requirements in s 65(2)(b) or (c) Evidence Act 1995 (NSW).

Parties
Crown: Regina; Accused: Justin Shawn John Smith
Jurisdiction
Australia
Judgment Date
10 November 2020
Procedural Posture
Criminal / Evidentiary Ruling Before Trial Proceeds
Outcome
Crown's applications refused
Legal Topics
Admissibility of Admissions, Recording of Police Interviews, Hearsay Exception—unavailability of Witness, Discretion to Exclude Evidence for Unfairness
Criminal Law Evidence Admissibility of Admissions Recording of Police Interviews Hearsay Exception—unavailability of Witness Discretion to Exclude Evidence for Unfairness

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Parties

Regina

Crown

Justin Shawn John Smith

Accused

Procedural Posture

Criminal / Evidentiary Ruling Before Trial Proceeds

Legal Issues

  1. 1 Whether the Crown established a reasonable excuse for failure to record an alleged admission under s 281 Criminal Procedure Act 1986 (NSW)
  2. 2 Whether to exclude mother's conversation with accused under s 90 Evidence Act 1995 (NSW)
  3. 3 Whether to admit deceased’s statements under hearsay exceptions in s 65(2)(b) and (c) Evidence Act 1995 (NSW)

Ratio Decidendi

The Crown failed to establish a reasonable excuse for not recording the alleged admission as required by s 281 Criminal Procedure Act 1986 (NSW); the context of the accused's conversation with his mother rendered its admission unfair within s 90 Evidence Act 1995 (NSW); and the deceased’s post-incident statement did not satisfy the reliability or non-fabrication requirements in s 65(2)(b) or (c) Evidence Act 1995 (NSW).

Court Disposition

Crown's applications refused

Orders

  • The Crown's application to tender the evidence of the admission during official questioning is rejected.
  • The Crown's application to admit the conversation between the accused and his mother is rejected.