R v Botrus (No 2) [2020] NSWSC 1205

R v Botrus (No 2) [2020] NSWSC 1205

Mr Amanoael's police statement that "I think he had black eyes" asserted, albeit with some equivocation, a fact about the colour of the eyes of the person wearing the motorbike helmet. His evidence at trial that he "didn't pay much attention" denied having observed the colour, or having paid enough attention to express a view about it. Applying a common sense approach, para 8 of the police statement contained a prior inconsistent statement for the purposes of s 38(1)(c), and no factors under ss 38(6) or 192 warranted refusal of leave.

Jurisdiction
Australia
Judgment Date
04 September 2020
Procedural Posture
Criminal Proceeding for Murder / Crown Application During Trial for Leave to Cross Examine Its Witness Under S 38(1)(c) of the Evidence Act 1995 (nsw)
Outcome
The application for leave pursuant to s 38(1)(c) of the Evidence Act 1995 (NSW) was granted.
Legal Topics
['unfavourable Witnesses' 'prior Inconsistent Statement' 'leave to Cross Examine Own Witness' 'evidence Act 1995 (nsw) Ss 38 and 192']
['criminal Law' 'evidence'] ['unfavourable Witnesses' 'prior Inconsistent Statement' 'leave to Cross Examine Own Witness' 'evidence Act 1995 (nsw) Ss 38 and 192']

Case Brief

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Procedural Posture

Criminal Proceeding for Murder / Crown Application During Trial for Leave to Cross Examine Its Witness Under S 38(1)(c) of the Evidence Act 1995 (nsw)

Legal Issues

  1. 1 ['Whether Mr Amanoael had made a prior inconsistent statement for the purposes of s 38(1)(c) of the Evidence Act 1995 (NSW).' 'Whether any factors under ss 38(6) or 192 of the Evidence Act 1995 (NSW) warranted refusal of leave.']

Ratio Decidendi

Mr Amanoael's police statement that "I think he had black eyes" asserted, albeit with some equivocation, a fact about the colour of the eyes of the person wearing the motorbike helmet. His evidence at trial that he "didn't pay much attention" denied having observed the colour, or having paid enough attention to express a view about it. Applying a common sense approach, para 8 of the police statement contained a prior inconsistent statement for the purposes of s 38(1)(c), and no factors under ss 38(6) or 192 warranted refusal of leave.

Court Disposition

The application for leave pursuant to s 38(1)(c) of the Evidence Act 1995 (NSW) was granted.

Orders

  • ['The application for leave, pursuant to s 38(1)(c) of the Evidence Act 1995 (NSW), is granted.']