R v Brooks (No 3) - [2017] NSWSC 261

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Brooks (No 3) [2017] NSWSC 261
Hearing dates: 15-16 March 2017
Date of orders: 16 March 2017
Decision date: 16 March 2017
Jurisdiction: Common Law
Before: Hamill J
Decision:
The hearsay evidence is admissible.

Catchwords: CRIMINAL LAW – evidentiary ruling – hearsay – where previous representation made by alleged victim – statement by victim to bouncer immediately after stabbing – where victim called to give evidence – where maker not asked by either counsel about conversation – whether creates unfair prejudice – Evidence Act does not require evidence of previous representation to be given by maker of representation – whether operation of hearsay provisions creates unfairness – evidence allowed
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: [RESTRICTED JUDGMENT] [2016] NSWCCA 92
Breen v The Queen (1976) 180 CLR 233; [1976] HCA 15
Griffin v The Queen [2011] VSCA 304
Grills v The Queen [1996] HCA Trans 273, (1996) 70 ALJR 905
IMM v The Queen [2016] HCA 14
R v MSK and MAK (2004) 61 NSWLR 204; [2004] NSWCCA 308
Singh v The Queen [2011] VSCA 263
Texts Cited: Odgers Uniform Evidence Law (11th Edition) [2014]
Odgers Uniform Evidence Law (12th Edition) [2016]
Category: Procedural and other rulings
Parties: Regina
Bradley Brooks
Representation:
Counsel:
Huw Baker (Crown)
Andrew Boe (B Brooks)
Solicitors:
Director of Public Prosecutions
Younes + Espiner Lawyers (B Brooks)

File Number(s): 2015/00101058

EX TEMPORE Judgment (REVISED)

The accused has objected to evidence proposed to be adduced through the next witness, Mr Sean Bailey. The evidence concerns statements made to Mr Bailey in the immediate aftermath of the stabbing of the witness and alleged victim, Adam Swindell. While Mr Swindell is not identified by name, it appears to be common ground that the jury may readily infer that the person to whom Mr Bailey was speaking was Mr Swindell. For one thing it seems that he was the only person in the area who had been stabbed in the arm.
The statement of Mr Bailey tendered on the voir dire as exhibit VD6 records the following conversation and circumstances:

“11.   I then saw a number of people crouching down around the guy I saw trip on the gutter. It is at this point one of our guards Bernadette walked over. When Bernadette was over there, she yelled out to me to come over. When I went over there, the first thing I noticed was blood everywhere on this guy in the gutter. Not just on him but on the road too. I saw someone had taken their shirt off and placed it in the wound of the guy that was on the ground.
12.    Whilst standing there, I had a male walk up to me that had been stabbed in the arm. From Memory I think the stab wound was on his left arm but cannot remember 100%.
13.   I had a conversation with this male. I said, ‘What happened?’
He said, ‘I’ve…

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 Brooks (No 3)

Details

AGLC: R v Brooks (No 3) [2017] NSWSC 261
Case: [2017] NSWSC 261
Decision Date: 16 March 2017

CaseChat Overview and Summary

In the case of R v Brooks, the respondent was charged with stabbing the victim in a nightclub. The victim died as a result of his injuries. During the trial, the court considered whether a statement made by the victim to a bouncer immediately after the stabbing was admissible as evidence. The victim had called to give evidence, but neither counsel asked the victim about the conversation with the bouncer. The issue before the court was whether the operation of the hearsay provisions created an unfair prejudice to the accused.

The court considered whether the evidence of the previous representation was required to be given by the maker of the representation, and found that it was not. The court noted that the Evidence Act did not require the evidence of the previous representation to be given by the maker of the representation. The court also considered whether the operation of the hearsay provisions created unfairness, and found that it did not. The court held that the evidence was admissible, as it was relevant to the matters in issue and its probative value was not substantially outweighed by the danger of unfair prejudice to the accused.

The court also noted that the hearsay provisions were designed to ensure that evidence was reliable and that the maker of the representation was available to be cross-examined. In this case, the victim was available to be cross-examined, and the hearsay provisions did not prevent this from occurring. The court held that the evidence was admissible, and that the hearsay provisions did not create unfairness in this case.

The final orders of the court were not specified in the text. However, it is likely that the court allowed the evidence to be admitted, and that the trial continued with the evidence being considered by the jury.

Orders