R v KJ and R v Jayden Hunter

Reported Decision: 9 DCLR (NSW) 374

District Court

CITATION:	R v KJ & R v Jayden HUNTER [2009] NSWDC 237
HEARING DATE(S):	10 September 2009
EX TEMPORE JUDGMENT DATE:	10 September 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The Crown application to play part of the Electronically Recorded Interview with the unfavourable witness is refused.
CATCHWORDS:	Criminal Law - Judgment on voir dire - Unfavourable witness - Tender of Electronically Recorded Interview - Hearsay - Second hand hearsay - Admission
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Adam v The Queen (2001) 207 CLR 96 Lee v The Queen (1998) 195 CLR 594 R v Suteski [2002] NSWCCA 509 Tan v R [2008] NSWCCA 332
PARTIES:	The Crown KJ Jayden Hunter
FILE NUMBER(S):	DC 08/11/1081; DC 08/11/1082
COUNSEL:	G O'Rourke - Crown A Evers - KJ J Stratton SC - Jayden Hunter
SOLICITORS:	NSW DPP JPM Legal - KJ ALS - Jayden Hunter

JUDGMENT

1 HIS HONOUR: This morning evidence was called from Mr Kennedy. He had previously been interviewed by police. A video recording of that interview is available. I have read the transcripts of what he said. There is material in the interview which the Crown seeks to rely on. There was also material which I expect that the accused will seek to rely on.

2 This judgment concerns the admissibility of that part of the recorded interview which concerns admissions made by KJ to Mr Kennedy. Mr Kennedy professed to have no memory of many things in the witness box when he was called on the voir dire this morning. In particular he could not recall someone called BR; did not know a person by the name of KJ or KB, one of the accused, and could not recall being to premises where it is common ground that relevant events occurred.

3 In the interview with the police, he said something quite different. Whether or not he was making a genuine attempt to give evidence, it is clear that Mr Kennedy has made a prior inconsistent statement and thus he can be cross-examined under s 38 of the Evidence Act. I did not understand counsel for either accused to challenge what I have thus far said.

4 The question then becomes what happens to the recorded interview that Mr Kennedy made with the police. The Crown wishes to tender that interview in accordance with the Court of Criminal appeal decision in Adam v The Queen (2001) 207 CLR 96. Mr Stratton SC and Mr Evers accept that the Crown is entitled to put before the jury some parts of that interview but submit that what is not admissible by the means I have just described is the playing to the jury of statements made by Mr Kennedy to police that the effect that KJ had made admissions to him.

5 This judgment as I have said is limited to the admissibility of that evidence. That is, is the Crown entitled…