R v Bagster [2022] NSWDC 300

District Court New South Wales

Medium Neutral Citation: R v Bagster [2022] NSWDC 300 Hearing dates: 16 May 2022 Date of orders: 17 May 2022 Decision date: 17 May 2022 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: The deceased witness's statement can be tendered at trial but must be edited as proposed by the defence. For orders see [51]. Catchwords: CRIME – Unlawful killing CRIMINAL PROCEDURE - Trial - Voir dire - admissibility of hearsay evidence EVIDENCE - Hearsay - Hearsay rule - unavailable witness at first trial - evidence of deceased's representations admitted - at second trial witness who repeated deceased's representations now also dead – tender of her hearsay representations in the first trial objected to EVIDENCE - Hearsay - Exceptions - evidence from previous proceedings - evidence from previous proceedings contains hearsay - application of ss 65(3) Evidence Act 1995 - applicability of s 62 Evidence Act - is a representation of an unavailable witness given by another but now also unavailable witness admissible? Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Lee v The Queen (1998) CLR 594; [1994] HCA 60 Li v R [2003] NSWCA 386 Puchalski v R [2007] NSWCCA 220. R v Taber [2007] NSWCA 116 Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 Texts Cited: Australian Law Reform Commission, Evidence, Report No 26 Interim, (1985) Cross on Evidence, JD Heydon, Lexis Red, online edition, updated September 2021 Evidence Law in Australia 15th Edition, S Odgers. Thompson Reuters 2021 Uniform Evidence in Australia 3rd edition 2020, R Weinstein, J Anderson, J Marychurch, J Roy, Lexis Nexis Category: Procedural rulings Parties: David Bagster (the accused) Director of Public Prosecutions Representation: Counsel: Mr S Fraser, Public Defender (for the accused) Mr Todd, Crown Prosecutor (for Director of Public Prosecutions)