R v Brooks (No 3) [2017] NSWSC 261

R v Brooks (No 3) [2017] NSWSC 261

Section 66 of the Evidence Act 1995 (NSW) permits hearsay evidence from a person who heard the representation so long as the maker is available and called to give evidence; it does not require the maker to remember or be questioned about the representation. The defence had an opportunity to cross-examine the maker and chose not to. There is no unfairness or unfair prejudice from admitting the hearsay evidence on these facts; thus, the hearsay evidence is admissible.

Jurisdiction
Australia
Judgment Date
16 March 2017
Procedural Posture
Criminal / Evidentiary Ruling
Outcome
hearsay evidence admitted
Legal Topics
['hearsay' 'admissibility of Hearsay Evidence' 'unfair Prejudice']
['criminal Law' 'evidence'] ['hearsay' 'admissibility of Hearsay Evidence' 'unfair Prejudice']

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Procedural Posture

Criminal / Evidentiary Ruling

Legal Issues

  1. 1 ['Is hearsay evidence of a previous representation made by the alleged victim admissible under s 66 of the Evidence Act 1995 (NSW) when the maker was not asked about the conversation in evidence?' 'Does the operation of hearsay provisions under the Evidence Act 1995 (NSW) create unfairness in the circumstances of this case?']

Ratio Decidendi

Section 66 of the Evidence Act 1995 (NSW) permits hearsay evidence from a person who heard the representation so long as the maker is available and called to give evidence; it does not require the maker to remember or be questioned about the representation. The defence had an opportunity to cross-examine the maker and chose not to. There is no unfairness or unfair prejudice from admitting the hearsay evidence on these facts; thus, the hearsay evidence is admissible.

Court Disposition

hearsay evidence admitted

Orders

  • ['The hearsay evidence of Mr Bailey concerning statements by the alleged victim is admissible.']