BROWN, BARWICK, BROWN v R [2006] NSWCCA 69

BROWN, BARWICK, BROWN v R [2006] NSWCCA 69

The trial judge erred in admitting the representations under s65 because George Gray was available to give evidence: his voir dire evidence did not show incapacity within s13, and the judge also reversed the statutory tests in s65(2)(b) and s65(2)(c). However, the representations were admissible under s66 because they were made within hours of the events and the asserted facts were fresh in Gray's memory, and exclusion under ss135 or 137 was not warranted. The convictions nevertheless miscarried because, after a request, the judge failed to give the warnings and information required by s165 about hearsay and potentially unreliable evidence that was central to the Crown case. Barwick's...

Jurisdiction
Australia
Judgment Date
22 March 2006
Procedural Posture
Criminal Appeal / Appeal From District Court Convictions and Sentences
Outcome
Appeals allowed; convictions and sentences quashed; new trial ordered.
Legal Topics
['hearsay Evidence' 'availability and Competence of Witness' 'unreliable Evidence Warnings' 'unreasonable Verdict' 'miscarriage of Justice' 'new Trial']
['criminal Law' 'evidence' 'criminal Procedure'] ['hearsay Evidence' 'availability and Competence of Witness' 'unreliable Evidence Warnings' 'unreasonable Verdict' 'miscarriage of Justice' 'new Trial']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal From District Court Convictions and Sentences

Legal Issues

  1. 1 ['Whether the trial judge erred in admitting evidence of representations made by George Gray under s65 of the Evidence Act 1995 on the basis that he was unavailable to give evidence.' 'Whether the representations were admissible under s66 of the Evidence Act 1995 because George Gray was available and the asserted facts were fresh in his memory.' 'Whether the trial judge failed to give the warnings required by s165 of the Evidence Act 1995 for hearsay or otherwise potentially unreliable evidence.' "Whether Kevin Barwick's verdict was unreasonable or inconsistent with the evidence." 'Whether a new trial should be ordered.']

Ratio Decidendi

The trial judge erred in admitting the representations under s65 because George Gray was available to give evidence: his voir dire evidence did not show incapacity within s13, and the judge also reversed the statutory tests in s65(2)(b) and s65(2)(c). However, the representations were admissible under s66 because they were made within hours of the events and the asserted facts were fresh in Gray's memory, and exclusion under ss135 or 137 was not warranted. The convictions nevertheless miscarried because, after a request, the judge failed to give the warnings and information required by s165 about hearsay and potentially unreliable evidence that was central to the Crown case. Barwick's...

Court Disposition

Appeals allowed; convictions and sentences quashed; new trial ordered.

Orders

  • ['Allow the Appeal.' 'Quash the conviction the subject of the Appeal and the sentence imposed by Judge English.' 'Order that there be a new trial.']