R v WM - [2019] NSWDC 860

District Court

New South Wales

Medium Neutral Citation: R v WM [2019] NSWDC 860
Hearing dates: 19 and 20 November 2019
Date of orders: 22 November 2019
Decision date: 22 November 2019
Jurisdiction: Criminal
Before: P Taylor SC DCJ
Decision:
The Crown’s application under s 65 of the Evidence Act 1995 (NSW) is granted. The recorded audio record of interview of Michelle Paisa, and the statements of Tim Pago and Stephanie Efu are admitted as, respectively, Exhibits M, N and O.

Catchwords: CRIMINAL PROCEDURE — special hearing – voir dire – witness statements – record of interview – witness “not available to give evidence” – “fabrication” unlikely – reliability “highly probable” – “made in circumstances” – danger of “unfair prejudice”
Legislation Cited: Crimes Act 1900, s 578A
Evidence Act 1995 (NSW), s 65, s 135, s 137, cl 4 of Dictionary
Mental Health (Forensic Provisions) Act 1990, s 14, s 19
Cases Cited: Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268
R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
R v TAI, Alatini [2016] NSWCCA 207
Regina v Kazzi; Regina v Williams; Regina v Murchie [2003] NSWCCA 241
Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
Category: Procedural and other rulings
Parties: Regina
WM (Accused)
Representation:
Counsel:
Mr T Abdulhak (Crown)
Mr B Robinson (Accused)
Solicitors:
Office of Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2015/260022
Publication restriction: S 578A of the Crimes Act 1900 (NSW) applies. A person shall not publish any matter which identifies the complainant in the proceedings or any matter which is likely to lead to the identification of the complainant. As such, pseudonyms have been used in the published judgment for all persons except for police officers and expert witnesses.

Judgment

A. Introduction

The accused, Warren Murray*, [1] objects to the tender of an electronically recorded record of interview and two witness statements.

B. Issues

The admissibility of the record of interview and the statements raises the following issues:

Is the person who gave the record of interview and are the persons who made the statements “not available to give evidence” under s 65(1) of the Evidence Act 1995 (NSW).

Were the representations in the witness statements made in “circumstances that make it unlikely that [they were] a fabrication” within the meaning of s 65(2)(b) of the Evidence Act.

Were the representations in the record of interview “made in circumstances that make it highly probable that [they are] reliable” within the meaning of s 65(2)(c) of the Evidence Act.

Is the probative value of the record of interview or the witness statements outweighed by the danger of unfair prejudice to Mr Murray, and thus to be excluded under s 137 of the Evidence Act, or substantially outweighed by the danger that the evidence might be misleading or confusing such that the Court should refuse to admit the evidence under s 135(b) of the Evidence…

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 WM

Details

AGLC: R v WM [2019] NSWDC 860
Case: [2019] NSWDC 860
Decision Date: 22 November 2019

CaseChat Overview and Summary

The case of R v WM involved a criminal prosecution in which the reliability and admissibility of certain evidence were in question. The respondent, WM, was facing criminal charges, and the prosecution sought to introduce statements and an audio recording as evidence. The central issue before the court was whether these materials could be admitted despite the witnesses being unavailable to testify due to their alleged unreliability.

The court had to determine if the recorded interview and statements met the criteria set out in the Evidence Act 1995 (NSW), specifically under section 65. This section allows for the admission of evidence that would otherwise be inadmissible if the witness is unavailable, provided that the evidence is reliable and it would not be unfair to the respondent to admit it. The court considered whether the evidence was "fabricated" and if it was "made in circumstances" that made it highly probable that it was reliable. The court also had to weigh the risk of unfair prejudice against the respondent against the benefits of admitting the evidence.

The court found that the evidence was not likely to be fabricated and was made under circumstances that indicated high reliability. It was also decided that the danger of unfair prejudice did not outweigh the benefits of admitting the evidence. Accordingly, the Crown's application was granted, and the recorded audio interview of Michelle Paisa, along with the statements of Tim Pago and Stephanie Efu, were admitted as Exhibits M, N, and O respectively.

Orders

Orders of the court

The Crown’s application under s 65 of the Evidence Act 1995 (NSW) is granted. The recorded audio record of interview of Michelle Paisa, and the statements of Tim Pago and Stephanie Efu are admitted as, respectively, Exhibits M, N and O.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v WM [2019] NSWDC 860
Hearing dates:	19 and 20 November 2019
Date of orders:	22 November 2019
Decision date:	22 November 2019
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	The Crown’s application under s 65 of the Evidence Act 1995 (NSW) is granted. The recorded audio record of interview of Michelle Paisa, and the statements of Tim Pago and Stephanie Efu are admitted as, respectively, Exhibits M, N and O.
Catchwords:	CRIMINAL PROCEDURE — special hearing – voir dire – witness statements – record of interview – witness “not available to give evidence” – “fabrication” unlikely – reliability “highly probable” – “made in circumstances” – danger of “unfair prejudice”
Legislation Cited:	Crimes Act 1900, s 578A Evidence Act 1995 (NSW), s 65, s 135, s 137, cl 4 of Dictionary Mental Health (Forensic Provisions) Act 1990, s 14, s 19
Cases Cited:	Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 R v TAI, Alatini [2016] NSWCCA 207 Regina v Kazzi; Regina v Williams; Regina v Murchie [2003] NSWCCA 241 Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
Category:	Procedural and other rulings
Parties:	Regina WM (Accused)
Representation:	Counsel: Mr T Abdulhak (Crown) Mr B Robinson (Accused) Solicitors: Office of Director of Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2015/260022
Publication restriction:	S 578A of the Crimes Act 1900 (NSW) applies. A person shall not publish any matter which identifies the complainant in the proceedings or any matter which is likely to lead to the identification of the complainant. As such, pseudonyms have been used in the published judgment for all persons except for police officers and expert witnesses.