R v Hunter (No. 2) - [2013] NSWSC 1806

Supreme Court

New South Wales

Medium Neutral Citation: R v Hunter (No. 2) [2013] NSWSC 1806
Hearing dates: 13 November 2013
Decision date: 06 December 2013
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
1. The objection by the Accused to the tender by the Crown of the contents of the statement of Wade Hunter dated 2 September 2011 is overruled.
2. The representations identified by the Crown in the statement of Wade Hunter dated 2 September 2011 satisfy the requirements of s.65(1) and (2) Evidence Act 1995.
3. The Accused's Notice of Motion filed on 28 October 2013 is dismissed.

Catchwords: CRIMINAL LAW - murder - pretrial application to exclude evidence - statement of witness who has since died - exception to hearsay rule where witness unavailable - whether requirements of s.65(2) Evidence Act 1995 satisfied - whether evidence should be excluded under s.137 Evidence Act 1995 - requirements of s.65(2) established - evidence should not be excluded under s.137
Legislation Cited: Evidence Act 1995
Cases Cited:
Festa v The Queen [2001] HCA 72; 208 CLR 593
Lee v The Queen [1998] HCA 60; 195 CLR 594
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603
R v Cook [2004] NSWCCA 52
R v El Masri [2010] NSWSC 1277
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v Sio [2013] NSWSC 1412
R v Suteski [2002] NSWCCA 509; 56 NSWLR 182
Texts Cited: ---
Category: Interlocutory applications
Parties: Regina (Crown)
Paul Andrew Hunter (Accused)
Representation: Counsel:
Mr RA Herps (Crown)
Mr DL Carroll (Accused)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Shiranica Danieli Lawyers (Accused)

File Number(s): 2011/397367
Publication restriction: ---

Judgment

JOHNSON J: The Accused, Paul Andrew Hunter, is charged with the murder of Jason Dixon at Dharruk on 23 June 2011.

Nature of the Application and the Issues For Determination

This is an application by the Accused to have excluded from evidence at his trial, previous representations contained in a witness statement of his deceased brother, Wade Hunter.

By Notice of Motion filed 28 October 2013, the Accused seeks orders in advance of the trial under s.192A Evidence Act 1995 ("the Act") that the previous representations are not admissible or, in the alternative, that their admission into evidence be refused under s.137 of the Act. The Notice of Motion had also sought the exclusion of other evidence in the proceedings. However, that portion of the application was abandoned at the hearing.

The relevant previous representations were made in a witness statement, given by Wade Hunter to police on 2 September 2011. The version of events given in the witness statement implicates both the Accused and Wade Hunter in the murder of Jason Dixon. Wade Hunter is now deceased and, consequently, unavailable to give evidence. Evidence of those representations is sought to be adduced by the Crown pursuant to s.65(2)(d) of the Act in the form of…

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 Hunter (No. 2)

Details

AGLC: R v Hunter (No. 2) [2013] NSWSC 1806
Case: [2013] NSWSC 1806
Decision Date: 06 December 2013

CaseChat Overview and Summary

The case of R v Hunter (No. 2) involved the defendant, Hunter, who was charged with murder. The deceased, a witness in the case, had died prior to the trial, and the prosecution sought to introduce a statement made by the deceased into evidence. Hunter applied for the evidence to be excluded, arguing that it did not meet the requirements of the hearsay exception in section 65(2) of the Evidence Act 1995 and should be excluded under section 137 of the same Act. The court had to determine whether the requirements of section 65(2) were satisfied and, if so, whether the evidence should still be excluded under section 137.

The central legal issues before the court were whether the deceased's statement met the criteria for the hearsay exception under section 65(2) of the Evidence Act 1995 and, if it did, whether the evidence should be excluded under section 137 of the same Act. The court needed to consider the circumstances in which the statement was made, the declarant's availability, and whether the statement had sufficient probative value to justify its admission. Additionally, the court had to weigh the probative value of the evidence against any potential prejudice it might cause.

The court found that the requirements of section 65(2) of the Evidence Act 1995 were met. The deceased had made the statement under circumstances that suggested its reliability, and the declarant was indeed unavailable to testify. The court concluded that the statement had sufficient probative value to warrant its admission. However, the court also considered section 137 of the Act and determined that, despite the probative value of the evidence, the potential prejudice to the defendant outweighed this value. Consequently, the evidence should be excluded.

The court ordered that the statement of the deceased witness be excluded from evidence in the trial of Hunter for murder. The court's decision hinged on a careful balancing of the probative value of the evidence against the potential prejudice it might cause to the defendant, ultimately finding that the prejudice outweighed the probative value.

Orders