Citation: R v Lardner (No 7) [2026] NSWSC 854
Court: Supreme Court of New South Wales
Date: 17 July 2026
Judge: Campbell J
Background
The accused stands trial for the death of the deceased, who was stabbed during a confrontation. A key witness, referred to here as Ms Davis, was believed to have been present at the stabbing. She had refused to cooperate with police and made no statement. She was eventually brought to court under a bench warrant issued under s 194 of the Evidence Act 1995 (NSW), following an earlier judgment overruling her objection to giving evidence under s 18(2) of that Act.
Because the prosecution had not served any prior account from Ms Davis in accordance with criminal procedure case management requirements, her evidence was taken on the voir dire by way of a Basha inquiry (a procedure that allows the defence to hear a witness's evidence before it is formally received at trial). In a judge-alone trial this step was taken purely for the benefit of the defence, since there was no jury to shield from potentially inadmissible material.
When called, Ms Davis denied even being present at the stabbing, then retreated from that denial, ultimately producing a series of formulations expressing complete lack of recall about salient events. The Crown sought to cross-examine her on prior inconsistent oral statements she allegedly made on the night of the stabbing, and subsequently sought to admit both her Basha evidence and hearsay evidence from two other witnesses who attributed statements to her.
Legal Issues
- Whether Ms Davis's evidence, taken on the voir dire in a Basha inquiry, should be admitted as evidence in the trial proper
- Whether that evidence was relevant, and whether its probative value was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW)
- Whether hearsay statements attributed to Ms Davis by two other witnesses were admissible
- Whether a particular phrase attributed to Ms Davis ("He got him a gooden") constituted an admissible lay opinion under s 78, or should be excluded under s 137
Decision
Issue 1: Admissibility of the Basha inquiry evidence in the trial
Campbell J admitted Ms Davis's Basha evidence as evidence in the trial. His Honour identified several reasons favouring admission: the prosecution's obligation to call all available witnesses who ought to have material evidence; the need to provide an evidentiary platform for assessing the admissibility of the prior inconsistent statements; and the fact that witnesses failing to come up to proof is not uncommon.
His Honour was not satisfied that the danger of unfair prejudice to the accused outweighed the probative value of the evidence. He directed himself expressly that no forensic prejudice could be attributed to the accused simply because witnesses appeared not to be making genuine efforts to recall events. He also noted that any absence of evidence supporting self-defence would need to be weighed alongside the accused's own evidence if he chose to give it, and that the onus of proof, including the obligation to negative self-defence, remains on the Crown throughout.
Issue 2: Admissibility of hearsay statements attributed to Ms Davis
Following the ruling on Ms Davis's own evidence, the Crown sought to admit hearsay evidence from two witnesses who attributed statements to her. The judgment excerpt does not reproduce the full reasoning on all aspects of this question, but the court proceeded to rule on specific phrases within the proposed exhibit.
Issue 3: Exclusion of the phrase "He got him a gooden"
A particular phrase attributed to Ms Davis, describing the blow in colloquial terms, was challenged by defence counsel. Campbell J held the phrase was not a representation of a primary fact perceived by Ms Davis, but rather a statement of opinion about the nature of the blow after the event. It did not qualify as an admissible lay opinion under s 78 of the Evidence Act.
Independently, his Honour excluded the phrase under s 137, finding that its limited probative value over and above the plain factual statement that the deceased was stabbed was outweighed by the danger of unfair prejudice. The colourful, inflammatory language carried that danger even in a judge-alone trial. His Honour drew guidance from the Court of Criminal Appeal's reasoning in Ridgeway v R [2024] NSWCCA 85, where similarly inflammatory language was excluded as highly prejudicial, though noting the contexts were not identical since that case concerned a statement attributed to an accused rather than a lay witness.
Orders Made
No orders were made in this decision.
Key Takeaways
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In a judge-alone trial, a Basha inquiry may still be appropriate where the prosecution has not served a prior account of a witness in accordance with case management requirements, the procedure operating for the benefit of the defence even in the absence of a jury.
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A witness's complete failure to recall events does not, without more, make their evidence inadmissible; the court confirmed that receiving such evidence serves legitimate purposes including providing an evidentiary platform for assessing prior inconsistent statements.
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Under s 137 of the Evidence Act 1995 (NSW), colourful or inflammatory language in a hearsay statement can be excluded even in a judge-alone trial if its limited probative value is outweighed by the danger of unfair prejudice, with the court expressly declining to treat the absence of a jury as eliminating that danger.
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A lay opinion under s 78 must relate to something the witness saw, heard, or otherwise perceived; a characterisation of the severity or nature of a blow formed after the event does not satisfy that requirement.
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The court reaffirmed that the onus of proof, including the obligation to negative self-defence, remains on the Crown throughout the trial, regardless of whether the accused elects to give evidence.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 78, 137, 194
Cases
- Ridgeway v R [2024] NSWCCA 85
- R v Lardner (No 6) [2026] NSWSC 845