Citation: R v Lardner (No 4) [2026] NSWSC 802
Court: Supreme Court of New South Wales
Date: 9 July 2026
Judge: Campbell J
Background
The accused stands trial for the killing of the deceased, who was stabbed at premises in Kempsey on the evening of 1 March 2023. The principal issue at trial is self-defence: whether the accused believed stabbing the deceased was necessary to protect himself, and whether that belief and his conduct were reasonable in the circumstances as he perceived them.
A central factual question is whether the deceased harboured a grievance against the accused on the night of the killing. The Crown's case, and elements of the defence's own case theory, suggest the deceased was angry about the quality of drugs the accused had supplied him, was under financial pressure from his father for unpaid rent, and had lost money gambling at an RSL club shortly before attending the accused's premises.
A niece of the deceased, Ms April Vale, gave evidence at trial. During her oral testimony, new information emerged that had not appeared in her original police statement. A supplementary statement was subsequently taken from her and admitted into evidence. The Crown sought to recall her to give evidence in accordance with that second statement. Defence counsel objected under s 137 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether the hearsay representations in Ms Vale's supplementary statement were admissible under the exceptions in ss 65(2)(b) and 66A of the Evidence Act 1995 (NSW).
- Whether the probative value of Ms Vale's supplementary evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW), having regard to the late and mid-trial disclosure of the statement, the inherent difficulties of hearsay evidence, and the accused's inability to conduct independent investigations into its reliability.
Decision
Issue 1: Hearsay admissibility under ss 65(2)(b) and 66A
Defence counsel ultimately accepted the Crown's submissions that the hearsay representations in the supplementary statement fell within the exceptions to the hearsay rule under ss 65(2)(b) and 66A of the Evidence Act. Campbell J noted that, given this concession in an adversarial proceeding, there was no need to separately analyse the Crown's argument on this point.
Issue 2: Exclusion under s 137
Campbell J identified the core objection as forensic rather than as a concern about irrational reasoning by the tribunal of fact. The prejudice asserted related to the mid-trial emergence of the statement, the short notice given under s 67, the inherent difficulty of challenging hearsay evidence, and the three-year-and-four-month delay between the fatal events and Ms Vale's account.
The judge applied the approach confirmed by the High Court in IMM v The Queen (2016) 257 CLR 300, holding that for the purposes of the s 137 balance, the evidence must be assessed at its highest, on the assumption that the tribunal of fact may accept it. Taking that approach, Campbell J found the evidence carried measurable probative value, particularly in relation to the deceased's state of mind and the existence of a dispute between the deceased and the accused on the day in question.
On the prejudice side, Campbell J observed that hearsay evidence is routinely admitted under statutory exceptions in criminal trials. The inherent risks of hearsay would be addressed by a mandatory judicial warning under s 165 of the Evidence Act requiring careful scrutiny before acceptance. Ms Vale's own reliability could be tested in cross-examination. To address the forensic prejudice from late disclosure, the judge indicated leave would be granted to issue subpoenas for telephone records, and noted the Crown had offered police assistance to obtain records from telecommunications providers. Campbell J concluded that the prejudicial effect did not outweigh the probative value and admitted the evidence.
Advance ruling under s 192A
Campbell J made this ruling as an advance ruling under s 192A of the Evidence Act. He emphasised that the s 137 exercise does not involve a discretion but requires an evaluative balancing of probative value against the danger of unfair prejudice.
Orders Made
• Leave granted for subpoenas to be issued to obtain relevant telephone records
• Advanced ruling under s 192A of the Evidence Act that the prejudicial effect of the evidence does not outweigh the probative value
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), the exercise of balancing probative value against the danger of unfair prejudice is evaluative rather than discretionary, following the High Court's approach in IMM v The Queen (2016) 257 CLR 300.
- For the purposes of the s 137 balance, evidence must be taken at its highest, meaning the court assumes the tribunal of fact may accept it; this approach applies even where the evidence is hearsay and has emerged late in proceedings.
- Forensic prejudice arising from the mid-trial disclosure of a witness's supplementary statement does not automatically outweigh probative value, particularly where cross-examination of the witness remains available and practical steps can be taken to address the informational disadvantage (such as subpoenas for telephone records).
- A s 165 warning, requiring the tribunal of fact to scrutinise hearsay evidence with care before accepting it, is a relevant safeguard that may inform the s 137 balance where hearsay's inherent limitations are raised as a source of prejudice.
- An advance ruling on admissibility under s 192A of the Evidence Act 1995 (NSW) is available mid-trial, including in judge-alone proceedings where the judge sits as both the evidentiary gatekeeper and the tribunal of fact.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 65(2)(b), 66A, 67, 137, 165, 192A
- Criminal Procedure Act 1986 (NSW), s 146
Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14