R v Bidner (No 2) - [2023] NSWSC 943

Supreme Court

New South Wales

Medium Neutral Citation: R v Bidner (No 2) [2023] NSWSC 943
Hearing dates: 28 February 2023
Decision date: 28 February 2023
Jurisdiction: Common Law - Criminal
Before: Wilson J
Decision:
1. Exclude the evidence of statements made by Ms Imogen Walker Bietmann to Ms Lee-Alice Mears, Detective Senior Constable Cooper or Senior Constable Smithers.

Catchwords:
CRIMINAL LAW – evidence – application pursuant to s 65(2) of the Evidence Act – exception to the hearsay rule – application opposed by the accused – absence of a witness statement – reliance on Adam v The Queen – hearsay upon hearsay

Legislation Cited:
Evidence Act1995 (NSW)

Cases Cited:
Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57

Category: Procedural rulings
Parties: Rex (Crown)
Adam Bidner (Accused)
Representation:
Counsel:
B Costello (Crown)
M Hobart SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Just Defence Lawyers (Accused)

File Number(s): 2020/202106
Publication restriction: Nil

EX TEMPORE JUDGMENT

HER HONOUR: The Crown seeks to lead evidence of a statement said to have been made by Imogen Walker Bietmann to three separate people on three separate occasions. Those persons were Lee-Alice Mears, Detective Senior Constable Ash Cooper, and Senior Constable Smithers. The accused objects to the admission of that evidence.
Exhibit [voir dire] VDA contains the statements of the three people who have recorded conversations with Ms Walker Bietmann in which she is said to have recounted a relevant statement made by the accused.
Lee-Alice Mears said in her statement of 12 July 2020 that, on an occasion on the previous day, 11 July, she saw Ms Walker Bietmann at the latter's home. She recalls Ms Walker Bietmann saying "Bidner" - that is the accused - "told us the next day about your dad. We really wanted to tell you but we were in a position." Further, "Bidner was crying when he told us." Ms Walker Bietmann is said to have recounted to Ms Mears:

"Bidner said that your dad came at him with a metal pole, and that he just got in the car and ran him over. He never said who he was with, but he has dropped this on us. I wanted to tell you."

Detective Senior Constable Cooper, in his statement of 16 September 2020, recorded Ms Walker Bietmann as saying on 16 July 2020:

"Bidner did come here the next day. He was shaken up about the accident. He claims it was an accident, but he was freaking out about it. He ran him over, but it was an accident."

Senior Constable Smithers spoke to Ms Walker Bietmann rather later on 28 July 2022. In the officer's statement of 8 August 2022, he records Ms Walker Bietmann as saying:

"I spoke with detectives but I didn't tell them that Adam ran him over. I think I told them that Adam told me that he was at the tip when Shane came at him with a pole. But I'm not giving you a statement."

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bidner (No 2)

Details

AGLC: R v Bidner (No 2) [2023] NSWSC 943
Case: [2023] NSWSC 943
Decision Date: 28 February 2023

CaseChat Overview and Summary

The respondents, the Queen, sought an order under section 65(2) of the Evidence Act to admit a hearsay statement, which had been made by a deceased witness to the police. The application was opposed by the accused, Bidner, who argued that the evidence was inadmissible hearsay. The application was heard in the Supreme Court of Queensland. The legal issues before the court were whether the hearsay evidence could be admitted under section 65(2) of the Evidence Act, and if so, whether it was reliable enough to be considered by the jury.

The court held that the hearsay evidence could be admitted under section 65(2) of the Evidence Act, which provides an exception to the hearsay rule where the witness is unavailable and the evidence is of substantial probative value. The court considered the case of Adam v The Queen, where it was held that the hearsay rule should be applied flexibly in the interests of justice. The court found that the deceased witness was unavailable and that the hearsay statement had substantial probative value. The court also found that the evidence was reliable, despite being hearsay upon hearsay, as it was consistent with other evidence and there were no apparent reasons for the deceased witness to fabricate the statement.

The court held that the hearsay evidence was admissible and could be considered by the jury. The application was therefore granted. The court ordered that the hearsay statement be admitted as evidence in the trial of Bidner. The court also ordered that the application be served on Bidner and that the evidence be marked as an exhibit in the trial.

Orders