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Supreme Court 1 July 2026

R v Lardner

[2026] NSWSC 778

Homicide
EVIDENCE OFFENSIVE AND AGGRESSIVE LANGUAGE

Citation: R v Lardner [2026] NSWSC 778
Court: Supreme Court of New South Wales
Date: 1 July 2026
Judge: Campbell J

Background

The accused stood trial before Campbell J, sitting alone, charged with the murder of the deceased. The alleged fatal stabbing occurred at and around a residential address in Kempsey in March 2023. A central factual dispute was who was the aggressor in the confrontation that ended in the deceased's death.

A civilian witness, who had known both the accused and the deceased his entire life, was giving evidence about events he observed and heard from his backyard on the night in question. By the time of trial, approximately three years had passed and the witness's recollection was imperfect.

The Crown Prosecutor applied under s 32 of the Evidence Act 1995 (NSW) to permit the witness to refresh his memory from his police statement. In doing so, the Crown also sought to tender a specific sentence from that statement: a reported utterance by a third party, Robert Dixon, who was present at the premises and who directed an offensive, aggressive remark at the deceased as the deceased was leaving the scene.

  • Whether the witness should be permitted to refresh his memory from his police statement under s 32 of the Evidence Act.
  • Whether the reported offensive remark by a third party (not the accused) was admissible as non-hearsay evidence under s 60(1) of the Evidence Act.
  • Whether, even if technically admissible, the evidence ought to be excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused.

Decision

Issue 1: Hearsay and the s 60 question

The accused's counsel conceded relevance was arguable but raised hearsay as an objection. Campbell J accepted the Crown's submission that the remark, being an insult rather than an assertion of fact, could not be proved or disproved for its truth. It was therefore capable of being treated as non-hearsay evidence under s 60(1) of the Evidence Act. His Honour found the evidence was relevant and admissible on that basis: the offensive send-off by a person associated with the premises, directed at the deceased as he was leaving, was capable of bearing on the question of who was the aggressor.

Issue 2: Exclusion under s 137

Despite finding the evidence technically admissible, Campbell J was required to undertake a mandatory balancing exercise under s 137, which obliges a court to exclude evidence where its probative value is outweighed by the danger of unfair prejudice to the defendant. His Honour emphasised that s 137 involves no discretion: if the balance tips against admission, exclusion is compulsory.

Several features reduced the probative value of the remark. The person who uttered it was Dixon, not the accused. There was no evidence that the accused was present when the remark was made, or that he heard it. The Crown confirmed Dixon would not be called as a witness. The witness who reported the remark was in his backyard at the time and, on the evidence already heard, the fatal confrontation had likely concluded before the remark was made.

Campbell J assessed the probative value as slight, even when considered alongside other anticipated Crown evidence. Against that slight value, his Honour weighed the offensive and aggressive character of the utterance and the resulting danger of unfair prejudice to the accused if admitted. The danger of prejudice outweighed the probative value. Accordingly, the evidence was excluded.

Orders Made

  • The words in the second sentence of paragraph 11 of the witness's police statement (being the reported offensive remark attributed to Robert Dixon) were refused admission into evidence.

Key Takeaways

  • Section 137 of the Evidence Act 1995 (NSW) is mandatory, not discretionary: where probative value is outweighed by the danger of unfair prejudice to the defendant, exclusion is required regardless of whether the proceeding is heard by judge alone or by jury.
  • In a judge-alone criminal trial, the trial judge applies the rules of evidence, including s 137, as though a jury were empanelled: the absence of a jury does not reduce the operation of the exclusionary rule.
  • A reported utterance that is an insult rather than an assertion of fact is not tendered for the truth of its contents and may fall outside the hearsay rule, potentially admissible under s 60(1) of the Evidence Act.
  • Slight probative value can tip the s 137 balance toward exclusion where the evidence is offensive or aggressive in character and the connection to the accused is indirect, particularly where the person who made the statement is not the accused and will not be called to give evidence.
  • Under s 60(1), a witness's unavailability is not a precondition to treating a reported statement as non-hearsay: the provision operates regardless of whether the maker of the statement is available to be called.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 32, 60, 61, 137

Cases cited: None cited in the judgment.