R v Colless [2016] NSWSC 931

Supreme Court New South Wales

Medium Neutral Citation: R v Colless [2016] NSWSC 931 Hearing dates: 22 June 2016 Decision date: 22 June 2016 Jurisdiction: Common Law Before: Button J Decision: I do not propose to reject the evidence, now that it has been clarified on the voir dire. Catchwords: CRIMINAL LAW – EVIDENCE – clarification of whether evidence is based on hearsay or direct observation on the voir dire – evidence relevant pursuant to s 55 of the Evidence Act 1995 (NSW) – no prejudice to accused – evidence admitted Legislation Cited: Evidence Act 1995 (NSW), s 55, 137 Category: Procedural and other rulings Parties: Regina Jack Vincent Colless Representation: Counsel: B Campbell (Crown) B Rigg SC (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Mandy Hull & Associates (Accused) File Number(s): 2014/124804

ex tempore Judgment 1. Objection has been taken by defence counsel to the third sentence of para 11 of the statement of the proposed Crown witness, Mr Max Harris, of 20 March 2015. In order to clarify whether what is contained in that sentence was based on direct observation or hearsay, the witness was briefly examined by each party on the voir dire, with my concurrence. 2. It was explained by senior counsel for the accused, after that evidence was received, that it is accepted that the evidence passes the test in s 55 of the Evidence Act 1995 (NSW) of relevance, though, it was said, barely. But it was said that there is a prejudice that accrues to the accused in that, to the extent that it seems that Mr Harris will speak of himself proposing to "sort it out" (in the first sentence of para 11), if the jury has an incomplete picture of what the accused said and did after an alleged harassment incident, (according to what Mr Harris says he observes) then that could cause prejudice to the accused: s 137 of the Evidence Act. 3. I respectfully disagree with that submission. 4. To my mind, the parties are at one that these alleged incidents of harassment before the fatal event are relevant to a number of issues that have been joined between the Crown and the accused, and the response of the accused is relevant to those issues as well. 5. To my mind, simply because Mr Harris may not be able to give a thoroughly complete picture of the acts of the accused immediately after one of these incidents is of no great moment. 6. Similarly, if it be the case that Mr Harris heard the accused use the phrase "sort it out" thereafter, that, to my mind, does not accrue prejudice to the accused. 7. It goes without saying that each party will be fully entitled to address the jury as to what, if any, inferences they would or would not be able to draw from Mr Harris's seemingly incomplete version of what the accused said and did. 8. Accordingly, I do not propose to reject the evidence, now that it has been clarified on the voir dire.