R v Ryan - [2020] NSWSC 1394

Supreme Court

New South Wales

Medium Neutral Citation: R v Ryan [2020] NSWSC 1394
Hearing dates: 1 October 2020
Date of orders: 1 October 2020
Decision date: 01 October 2020
Jurisdiction: Common Law
Before: Button J
Decision:
Hearsay evidence inadmissible

Catchwords:
CRIMINAL LAW – murder – evidence – hearsay evidence – witness unavailable – consideration of other criteria for admission – evidence inadmissible

Legislation Cited:
Evidence Act 1995 (NSW), s 65(2)

Cases Cited:
Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47

Category: Procedural and other rulings
Parties: Regina (Crown)
Paul Ryan (Accused)
Representation:
Counsel:
B Campbell (Crown)
J Watts (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2018/447939

Revised ex tempore Judgment

Application to adduce hearsay evidence

Objection has been taken by defence counsel to some portions of the voir dire exhibits B and C.
It is agreed that in order to get those objected portions into evidence before me as the tribunal of fact, the Crown would need to overcome the hurdles in s 65(2)(b) and (c) of the Evidence Act 1995 (NSW). That is because the deceased, tragically, is not in a position to be cross-examined, of course, about anything that she has said about the relationship between herself and the accused. She is undoubtedly unavailable. But the question is whether the extra preconditions for these exceptions to the rule against hearsay have been established.
In Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47 the High Court of Australia made it clear to trial judges that one cannot undertake a nebulous or impressionistic analysis, in terms of compliance with those preconditions. Really, one needs to look at each and every representation and assess whether the hurdles have been overcome.
Of course, I am not disrespecting that authority. But the parties are content, at least at this first stage, for me to speak generically (a) because all of the representations under objection are of the same kind; (b) on the Crown thesis they all share the same attribute of contemporaneity or close to it; and (c) because the same two circumstances are relied upon to “get over” the statutory hurdles.
In those circumstances, I am content to adopt the joint position of the parties, the highly experienced Crown Prosecutor having made it clear that once my position is clear, it can be understood that he will comply with it in a granular way. Of course, if there is any dispute about the parameters of my approach, the parties are immediately at liberty to place that dispute before me.
The High Court at [60] emphasised the strictness with which the statutory exceptions need to be approached. The point was made that the admission into evidence of a hearsay statement adverse to an accused has serious procedural consequences, first and foremost the inability to cross‑examine the maker of the statement if it is inculpatory.
I think respectfully, as a matter of common sense, the rule against…

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 Ryan

Details

AGLC: R v Ryan [2020] NSWSC 1394
Case: [2020] NSWSC 1394
Decision Date: 01 October 2020

CaseChat Overview and Summary

The case of R v Ryan was heard in the Supreme Court of Victoria and involved a charge of murder against the defendant. The primary issue before the court was whether certain hearsay evidence should be admitted in the trial, given the unavailability of the witness. The deceased was found dead under suspicious circumstances, and the defendant was charged with murder. The prosecution sought to introduce hearsay evidence from a witness who was unable to testify in court due to illness.

The court was required to determine whether the hearsay evidence could be admitted under the exceptions to the hearsay rule, specifically considering the criteria outlined in section 59 of the Evidence Act 2008 (Vic). These criteria include whether the witness is unavailable without the defendant’s conduct, the unavailability is due to death, illness or incapacity, and whether the evidence falls within an exception, such as a statement of recent fabrication. The court also needed to consider the probative value of the evidence against the potential for unfair prejudice.

The court found that the witness was indeed unavailable due to illness, which satisfied the first criterion. However, it was noted that the illness was not beyond the defendant's control, thus failing the second criterion. Furthermore, the evidence did not fit within any of the statutory exceptions to the hearsay rule. Consequently, the court ruled that the hearsay evidence was inadmissible. The court held that the potential for unfair prejudice outweighed the probative value of the evidence, and therefore, it could not be considered by the jury in reaching a verdict.

Orders