R v Morton [2008] NSWCCA 196

R v Morton [2008] NSWCCA 196

The District Court judge erred in stating the test for s65 Evidence Act too strictly (requiring 'no risk' of fabrication or unreliability) and in failing to make findings about the actual reliability of the translation process. The circumstances as found supported admissibility under s65(2)(b) and/or (c). Further, the process involving Mr le Pivain did not render the evidence inadmissible as 'hearsay on hearsay,' as Mr Scherer adopted and signed the statement. Consequently, the order rejecting the tender of the statement should be set aside.

Jurisdiction
Australia
Judgment Date
21 August 2008
Procedural Posture
Crown Appeal (criminal) / Interlocutory Appeal Following District Court Evidentiary Ruling
Outcome
Order rejecting the tender of the statement set aside. Crown appeal allowed.
Legal Topics
['hearsay Evidence' 'unavailability of Witnesses' 'use of Interpreters' 'admissibility of Prior Statements']
['criminal Law' 'evidence'] ['hearsay Evidence' 'unavailability of Witnesses' 'use of Interpreters' 'admissibility of Prior Statements']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Crown Appeal (criminal) / Interlocutory Appeal Following District Court Evidentiary Ruling

Legal Issues

  1. 1 ['Whether a witness statement taken through an interpreter is admissible under s65 Evidence Act when the maker is unavailable' 'Whether the circumstances in which the statement was taken render it reliable or unlikely to be fabricated under s65(2)(b)-(c)' "Whether 'hearsay on hearsay' is admissible under s65"]

Ratio Decidendi

The District Court judge erred in stating the test for s65 Evidence Act too strictly (requiring 'no risk' of fabrication or unreliability) and in failing to make findings about the actual reliability of the translation process. The circumstances as found supported admissibility under s65(2)(b) and/or (c). Further, the process involving Mr le Pivain did not render the evidence inadmissible as 'hearsay on hearsay,' as Mr Scherer adopted and signed the statement. Consequently, the order rejecting the tender of the statement should be set aside.

Court Disposition

Order rejecting the tender of the statement set aside. Crown appeal allowed.

Orders

  • ["The order by Phegan DCJ rejecting the tender of the witness' statement is set aside."]