R v Tangi (No 2) [2020] NSWSC 537

R v Tangi (No 2) [2020] NSWSC 537

The witness was unavailable after leaving Australia for Pakistan and attempts to contact him had failed. The statement was made to police in circumstances where the witness confirmed it accurately reflected evidence he would be prepared to give in court and undertook to attend, making fabrication unlikely or reliability highly probable for the purposes of s 65(2). Any prejudice from the inability to cross-examine could be addressed by directions and by allowing evidence about the witness's prior statement and dishonesty. The notice was reasonable, and if not, would be waived. The video recorded statement was therefore admissible.

Jurisdiction
Australia
Judgment Date
21 November 2019
Procedural Posture
Criminal Proceedings / Procedural Ruling on Admissibility of Evidence on the Voir Dire
Outcome
Evidence of the video recorded statement was held admissible.
Legal Topics
['hearsay' 'unavailable Witness' 'video Recorded Statement' 'notice Requirements' 'unfair Prejudice']
['evidence' 'criminal Procedure'] ['hearsay' 'unavailable Witness' 'video Recorded Statement' 'notice Requirements' 'unfair Prejudice']

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Procedural Posture

Criminal Proceedings / Procedural Ruling on Admissibility of Evidence on the Voir Dire

Legal Issues

  1. 1 ['Whether the video recorded statement or transcript of Mr Mian Atiq-Ur-Rehman was admissible where the maker was overseas and unavailable to give evidence.' 'Whether the previous representation fell within the exceptions to the hearsay rule in s 65(2)(b) or s 65(2)(c) of the Evidence Act 1995 (NSW).' 'Whether admission of the evidence would be unfairly prejudicial to the accused, including because the accused could not cross-examine the witness.' "Whether the Crown's notice was reasonable or should be waived."]

Ratio Decidendi

The witness was unavailable after leaving Australia for Pakistan and attempts to contact him had failed. The statement was made to police in circumstances where the witness confirmed it accurately reflected evidence he would be prepared to give in court and undertook to attend, making fabrication unlikely or reliability highly probable for the purposes of s 65(2). Any prejudice from the inability to cross-examine could be addressed by directions and by allowing evidence about the witness's prior statement and dishonesty. The notice was reasonable, and if not, would be waived. The video recorded statement was therefore admissible.

Court Disposition

Evidence of the video recorded statement was held admissible.

Orders

  • ['Evidence of Video Recorded Statement admissible.']