Director of Public Prosecutions (NSW) v Banks

The matter between the Director of Public Prosecutions for New South Wales and Mr Banks was heard before the Supreme Court of New South Wales. The dispute centred around the admissibility of a recording made by the Digital Voice Event Recorder (DVEC) of an alleged crime. The primary issue was whether the recording could be admitted under the law, given the absence of the maker of the recording.

The court was required to determine the interplay between section 289F(5) of the Criminal Procedure Act 1986 (NSW) and section 65 of the Evidence Act 1995 (NSW). Specifically, the court needed to decide whether the absence of the maker of the recording rendered it inadmissible hearsay under the Evidence Act, or if section 289F(5) provided an exception to this rule. The central question was whether the DVEC recording could be admitted under the statutory exception or if it was precluded by the hearsay rule.

The court concluded that section 289F(5) of the Criminal Procedure Act did not operate to exclude the common law hearsay rule. Consequently, the DVEC recording was inadmissible under the Evidence Act. The court found that even though the recording was made in the course of the accused's employment, the absence of the recorder meant that it was caught by the hearsay rule and therefore could not be admitted as evidence. The court's reasoning was grounded in the interaction between the two statutes and the fundamental principles of the law of evidence.

The final order of the court was that the DVEC recording was inadmissible as evidence in the trial against Mr Banks. The court's decision highlighted the importance of the maker's availability in the admissibility of such recordings and reinforced the application of the hearsay rule in criminal proceedings.