R v T [2004] NSWSC 634

New South Wales Supreme Court

CITATION : R v T [2004] NSWSC 634 HEARING DATE(S) : JUDGMENT DATE : 29 June 2004

JUDGMENT OF : Shaw J at 1 DECISION : 1) Evidence admitted and to be read out to the jury

CATCHWORDS : EVIDENCE - Admissibility - Hearsay - s65 Evidence Act - Witness unavailable - Unable to locate witness overseas - Transcript evidence from previous trial LEGISLATION CITED : Evidence Act 1995 (NSW), ss 59, 65, 137, 165 Driscoll v R (1977) 137 CLR 510; CASES CITED : R v Carusi (1997) 92 A Crim R 52; R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 PARTIES : Crown T (Accused) FILE NUMBER(S) : SC 70212/1998 COUNSEL : T. Bailey (Crown) G. Scragg (Accused) SOLICITORS : Robert Spence, DPP (Crown) Lee Wee Ting, Gregory Goold Solicitors (Accused)

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

Shaw J

29 June 2004

70212/98 R v T

(Judgment re Crown application pursuant to s. 65 of the Evidence Act)

JUDGMENT 1 SHAW J: This is an application by the Crown in a murder trial to rely upon s 65 of the Evidence Act, (the Act), an exceptional provision which allows prior evidence of representations to be placed into evidence if the maker is not available. The short facts of the present case are that four young men at Berala on Sunday 23 February 1997 became involved in an altercation with a person who subsequently died of stab wounds. One of those involved is being tried on a charge of murder. The other three pleaded guilty to the offence of assault causing actual bodily harm and were sentenced on that basis. Two of the persons involved in the incident have given evidence before the jury in the present case, but one of them is said not to be available because he has gone to Greece. The Crown therefore wishes to tender the examination-in-chief and cross-examination of the witness, whom I shall refer to as S, given at a trial before Howie J in October 2001 and extending through approximately 100 pages of transcript.