R v Wilson [2020] NSWDC 548

District Court New South Wales

Medium Neutral Citation: R v Wilson [2020] NSWDC 548 Hearing dates: 14 September 2020 Date of orders: 14 September 2020 Decision date: 14 September 2020 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 27 Catchwords: CRIMINAL LAW – evidence – Crown witness did not attend to give evidence – Crown's application under s 65 of Evidence Act 1995 (NSW) to adduce content of witness' police statement – exception to hearsay rule – whether witness was 'not available' – whether all reasonable steps were taken to locate the witness and procure his attendance Legislation Cited: Evidence Act 1995 (NSW), ss 65, 67, 137, Part 2, clause 4 of the Dictionary Cases Cited: Sio v The Queen (2016) 259 CLR 47 ZL v The Queen (2010) 208 A Crim R 325 Category: Procedural and other rulings Parties: Director of Public Prosecutions Mr B J Wilson Representation: Counsel: Ms K Henry for the Director of Public Prosecutions Mr W Buxton for the accused

Solicitors: Office of the Director of Public Prosecutions Legal Aid for the accused File Number(s): 2019/248475 Publication restriction: Nil

Judgment

INTRODUCTION 1. The Crown applies to have admitted into evidence part of the content of a police statement by Corey Leonard Futcher dated 1 August 2019. Corey Futcher is the brother of Clayton Futcher, who has already given evidence. 2. The application is made in circumstances where Corey Futcher has not arrived in Court. The Crown submits that he is not an 'available' witness within the meaning of cl 4 of Part 2 of the Dictionary to the Evidence Act 1995 (NSW) and thereafter submits that evidence in police statement is admissible under s 65(2) of the Evidence Act. 3. It is common ground that no notice was served as to the Crown's reliance upon this evidence, as required under s 67 of the Evidence Act. 4. Counsel for the Accused does not dispute that the alternative requirements under s 65(2) may be satisfied. His position is primarily that the Crown has not established that the witness is 'not available'. Alternatively, he contends that the Court would exercise its discretion under s 137 to exclude the evidence.