R v Ian Dacey; R v Lee Dacey - [2013] NSWSC 1875

Supreme Court

New South Wales

Medium Neutral Citation: R v Ian DACEY; R v Lee DACEY [2013] NSWSC 1875
Hearing dates: 11 November 2013
Decision date: 15 November 2013
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
Reasons published

Catchwords: EVIDENCE LAW - hearsay statements by deceased to various witnesses - maker unavailable - consideration of ss 65(2)(b) and 65(2)(c) of Evidence Act - whether representation made "shortly after" the event - whether circumstances surrounding representation make it unlikely that it was fabricated - whether the contents of representation relevant to determination of circumstances - hearsay evidence to police officer not admissible - interaction between s 65 and s 137 of Evidence Act - all other evidence of previous representations admissible
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Conway v The Queen [2000] FCA 46; (2000) 98 FCR 204
Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108
Harris v R [2005] NSWCCA 432; (2005) 158 A Crim R 454
Huynh v The Queen [2013] HCA 6
McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603; (2002) 133 A Crim R 461
R v Ian Dacey; R v Lee Dacey (Supreme Court of New South Wales, Barr AJ, 6 June 2013, unreported)
R v Mankotia [1998] NSWSC 295
R v Stokes; R v Difford (1990) 51 A Crim R 25
R v XY [2013] NSWCCA 121
Category: Procedural and other rulings
Parties: Regina
Ian Dacey
Lee Dacey
Representation: Counsel
W Creasey (Regina)
T Hoyle SC (Ian Dacey)
D Yehia SC (Lee Dacey)
Solicitors:
Solicitor for Public Prosecutions (Regina)
Armstrong Solicitors Pty Ltd (Ian Dacey)
Mandy Hull & Associates (Lee Dacey)

File Number(s): 201/333188; 2011/356716
Publication restriction: Not to be published until after verdict

Judgment

On 11 November 2013 I gave preliminary rulings with regard to the admissibility of evidence that was proposed to be tendered in the Crown case in this murder trial of two accused. At the time, due to the exigencies of the situation, and in order to permit the timely running of the trial, I indicated to the parties that I would provide my rulings then, but give my reasons as soon as possible thereafter. The following are those reasons.

The Crown seeks to place before the jury a number of things said by Peter Robert Dent, the deceased, whilst in a hospital in the days before his death. Reliance is placed by the Crown on s 65 of the Evidence Act 1995, to which I shall refer to as "the Act". Counsel for each of the accused objects to the evidence being led, relying upon the proposition that none of the preconditions in s 65(2) of the Act has been made out. In the alternative, with regard to all of the proposed evidence, it is submitted that I would…

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.

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Details

Case: [2013] NSWSC 1875
Decision Date: 15 November 2013

CaseChat Overview and Summary

The appellants, Ian Dacey and Lee Dacey, were charged with the murder of a man named Jason Cooper. The case came before the court, which had to determine the admissibility of certain hearsay evidence. Specifically, the court needed to decide whether statements made by the deceased, Jason Cooper, to various witnesses could be admitted under sections 65(2)(b) and 65(2)(c) of the Evidence Act. These sections relate to hearsay exceptions where the declarant is unavailable and the circumstances of the statement make it unlikely to have been fabricated. The court had to consider whether these statements were made shortly after the event, and if the circumstances surrounding the representations supported their admissibility.

The legal issues centred on whether the hearsay evidence was relevant to determining the circumstances of the event, and if the statements could be admitted under the specified sections of the Evidence Act. The court also had to consider the interaction between sections 65 and 137 of the Act, which deals with the admissibility of evidence of previous representations. The court assessed the reliability and probative value of the hearsay evidence, weighing the potential prejudice against the probative value. The court concluded that while some of the hearsay evidence could be admitted, statements made to a police officer were not admissible as they did not meet the criteria set out in section 65(2)(b) and 65(2)(c).

The court found that the hearsay evidence provided by witnesses other than the police officer was admissible because it was relevant to the circumstances of the event, and the circumstances surrounding these statements made it unlikely that they were fabricated. However, the statements made to the police officer were deemed inadmissible as they did not meet the criteria for admissibility under the Evidence Act. The court's reasoning was based on the specific provisions of the Act and the need to balance the probative value of the evidence against any potential prejudice it might cause. The court's decision provided clarity on the admissibility of hearsay evidence in similar future cases.

Orders