AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 17 July 2018

R v AKB (No. 6)

[2018] NSWSC 1111

Assault & violenceDomestic & family violence
EVIDENCE CRIMINAL LAW RELATIONSHIP EVIDENCE HEARSAY EVIDENCE FROM DECEASED

Citation: R v AKB (No. 6) [2018] NSWSC 1111
Court: Supreme Court of New South Wales
Date: 17 July 2018
Judge(s): Davies J

Background

This decision arose in a criminal trial in which the accused faced charges connected to a fatal fire. The Crown alleged the fire was not an accident, and sought to lead relationship evidence to establish that the accused had exerted control over the deceased in the period leading up to her death.

The Crown applied to lead evidence from the deceased's mother, who would testify about a conversation she had with her daughter a few days before the fire. In that conversation, the deceased told her mother that the accused had locked her in the bedroom on a night shortly before the fire occurred in that same room.

Defence counsel objected to the evidence. The objection was grounded in the assertion that the statement had very low probative value, because a forensic locksmith had given clear evidence that the bedroom door could not be locked from the outside.

  • Whether the deceased's out-of-court statement to her mother was admissible under section 65 of the Evidence Act 1995 (NSW) as hearsay evidence from a deceased person
  • Whether the probative value of the statement was outweighed by the danger of unfair prejudice to the accused
  • Whether any residual prejudice could be adequately addressed by a hearsay warning under section 165(1)(a) of the Evidence Act 1995 (NSW)

Decision

Davies J accepted, without apparent dispute from the parties, that the evidence was admissible under section 65(2)(b) or (c) of the Evidence Act 1995 (NSW), which permits hearsay statements from persons who are unavailable to give evidence. The central question was therefore whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused.

The Court found the statement carried real probative value as part of the Crown's broader relationship evidence. Its temporal proximity to the fire and its connection to what two other witnesses reported about events at the time of the fire supported its admission. Davies J also accepted the Crown's submission that a person could be described as "locked in" a room if another person held the door shut from outside, which provided a possible explanation for the deceased's account that was not necessarily inconsistent with the locksmith's evidence.

The Court acknowledged some prejudice to the accused, but considered it could be satisfactorily managed. Davies J noted that a hearsay warning would be given to the jury concerning the relationship evidence led by friends and family of the deceased, and that warning would draw the jury's attention to instances where the deceased had not told the truth, including in communications with a real estate agent and in a social media profile. The jury would also be reminded of the locksmith's evidence that the door could not be locked from outside.

Davies J further observed that the statement could in part assist the accused by allowing defence counsel to suggest to the jury that the deceased was willing to make untrue claims about him to justify her decision to leave him. Weighing all of these factors, the Court ruled that the evidence should be admitted.

Orders Made

No formal orders were recorded in this decision, which resolved a discrete evidentiary ruling during the trial. The Court's determination was that the evidence of the deceased's statement to her mother would be admitted.

Key Takeaways

  • Under section 65(2)(b) or (c) of the Evidence Act 1995 (NSW), hearsay statements from deceased persons may be admissible, with the critical question being whether probative value is outweighed by the danger of unfair prejudice to the accused.
  • A hearsay statement with apparent factual weaknesses, such as inconsistency with expert evidence, does not automatically lack probative value sufficient to justify exclusion; the Court may admit the statement and rely on appropriate jury directions to manage residual prejudice.
  • Temporal proximity to a charged event can support a finding that relationship evidence carries adequate probative value, particularly where other witnesses give corroborating accounts about conduct at the time of the event.
  • A hearsay warning under section 165(1)(a), when tailored to include specific references to the deceased's credibility and to contrary expert evidence, can be a sufficient mechanism to address prejudice arising from untested out-of-court statements.
  • Where an inconsistency between a hearsay statement and other evidence also provides a basis for a defence argument about the deceased's credibility, that dual character may weigh in favour of admission rather than exclusion.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 65, 165

Cases cited:
- Nil