R v Hansen [2022] NSWDC 746

R v Hansen [2022] NSWDC 746

The late served Facebook Messenger evidence was excluded because the prosecution failed to comply with mandatory pre-trial disclosure obligations without proper explanation, despite long-standing awareness of the possible messages; the evidence was imperfectly obtained and incomplete; the defence could not properly test matters affecting its context, date, source and authenticity; and admitting it would cause actual procedural unfairness and manifest prejudice to the accused. The Court was not satisfied that waiver under s 148 was in the interests of the administration of justice, and under s 137 the probative value of the late served evidence was outweighed by the danger of unfair...

Jurisdiction
Australia
Judgment Date
16 September 2022
Procedural Posture
Criminal Procedural Rulings in Trial on Indictment / Pre Trial Hearing Concerning Late Disclosed Evidence, Tendency Notice and Other Evidentiary Rulings
Outcome
Late served evidence excluded; tendency notice not further dealt with; other evidentiary rulings made.
Legal Topics
['pre Trial Disclosure' 'case Management Orders' 'exclusion of Evidence' 'unfair Prejudice' 'tendency Evidence' 'relationship Evidence' 'complainant Sexual Experience Evidence' 'good Character Evidence']
['criminal Law' 'evidence' 'criminal Procedure'] ['pre Trial Disclosure' 'case Management Orders' 'exclusion of Evidence' 'unfair Prejudice' 'tendency Evidence' 'relationship Evidence' 'complainant Sexual Experience Evidence' 'good Character Evidence']

Case Brief

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Procedural Posture

Criminal Procedural Rulings in Trial on Indictment / Pre Trial Hearing Concerning Late Disclosed Evidence, Tendency Notice and Other Evidentiary Rulings

Legal Issues

  1. 1 ['Whether late served evidence concerning Facebook Messenger messages should be excluded under s 146 of the Criminal Procedure Act 1986 (NSW) and/or s 137 of the Evidence Act 1995 (NSW).' 'Whether the Court should waive pre-trial disclosure requirements under s 148 of the Criminal Procedure Act 1986 (NSW).' "Whether the Crown's late tendency notice should be addressed if the late served evidence was excluded." 'Whether evidence of the lookout incident and taxi incident should be admitted.' "Whether evidence of a text message about the complainant's prior sexual experience should be admitted under s 294CB of the Criminal Procedure Act 1986 (NSW)." "Whether part of the accused's video interview concerning the complainant's sexuality should be excluded." 'Whether the accused could adduce good character evidence in the particular respect of having no arrests or convictions for sexual offences.']

Ratio Decidendi

The late served Facebook Messenger evidence was excluded because the prosecution failed to comply with mandatory pre-trial disclosure obligations without proper explanation, despite long-standing awareness of the possible messages; the evidence was imperfectly obtained and incomplete; the defence could not properly test matters affecting its context, date, source and authenticity; and admitting it would cause actual procedural unfairness and manifest prejudice to the accused. The Court was not satisfied that waiver under s 148 was in the interests of the administration of justice, and under s 137 the probative value of the late served evidence was outweighed by the danger of unfair...

Court Disposition

Late served evidence excluded; tendency notice not further dealt with; other evidentiary rulings made.

Orders

  • ['The statement of the complainant dated 24 August 2022 is excluded pursuant to s 146 of the Criminal Procedure Act and/or s 137 of the Evidence Act.' "The photographs of the complainant's mobile phone and video recording of the conversation between the complainant and DSC Vallette during which those photographs...