R v Afu; R v Caleo (No 15) [2018] NSWSC 245

R v Afu; R v Caleo (No 15) [2018] NSWSC 245

Ms Cheah was accepted to be unavailable, but her previous representations in the statement dated 21 November 1990 were inadmissible. Section 65(2)(b) was not satisfied because representations made about conversations occurring about six months or more earlier were not made 'when or shortly after' the asserted facts occurred, and the Crown's reliance on Ms Cheah's memory and absence of fabrication by the witness did not meet the statutory requirement. Section 65(2)(c) was not satisfied because little was known about the circumstances in which the statement was taken, one aspect of the statement was shown to be incorrect, and the Crown did not establish the high threshold that the...

Jurisdiction
Australia
Judgment Date
05 March 2018
Procedural Posture
Criminal Proceeding / Procedural Evidentiary Ruling on Admissibility of Hearsay Evidence
Outcome
Evidence inadmissible
Legal Topics
['hearsay' 'unavailable Witness' 'first Hand Hearsay' 'exception to Hearsay Rule' 'evidence Act 1995 (nsw) S 65' 'exclusion of Evidence']
['evidence' 'criminal Law'] ['hearsay' 'unavailable Witness' 'first Hand Hearsay' 'exception to Hearsay Rule' 'evidence Act 1995 (nsw) S 65' 'exclusion of Evidence']

Case Brief

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Procedural Posture

Criminal Proceeding / Procedural Evidentiary Ruling on Admissibility of Hearsay Evidence

Legal Issues

  1. 1 ['Whether Ms Cheah was not available to give evidence within the meaning of the Evidence Act 1995 (NSW).' "Whether Ms Cheah's previous representations in her statement dated 21 November 1990 were admissible under Evidence Act 1995 (NSW) s 65(2)(b)." "Whether Ms Cheah's previous representations in her statement dated 21 November 1990 were admissible under Evidence Act 1995 (NSW) s 65(2)(c)."]

Ratio Decidendi

Ms Cheah was accepted to be unavailable, but her previous representations in the statement dated 21 November 1990 were inadmissible. Section 65(2)(b) was not satisfied because representations made about conversations occurring about six months or more earlier were not made 'when or shortly after' the asserted facts occurred, and the Crown's reliance on Ms Cheah's memory and absence of fabrication by the witness did not meet the statutory requirement. Section 65(2)(c) was not satisfied because little was known about the circumstances in which the statement was taken, one aspect of the statement was shown to be incorrect, and the Crown did not establish the high threshold that the...

Court Disposition

Evidence inadmissible

Orders

  • ["The evidence of Ms Cheah's previous representations set out in her statement dated 21 November 1990 is excluded."]