R v Dunbar (No 2)

Evidence tendered on the voir dire

8. The Crown tendered the following evidence on the voir dire:

9. Statement of Constable Jabbour dated 17 March 2022 (signed 24 March 2022) (relevant paragraphs [20]-[24]);

10. USB with video and a transcript of a walk-through video of Constable Maddison Jabbour filmed at Blacktown Hospital on 17 March 2022;

11. Statement of Senior Constable Albert Tudia (the other officer at the hospital);

12. Statement of Senior Constable Adam Brown dated 17 March 2022 (with attached notebook);

13. Statement of Senior Constable Murray Brogan dated 17 August 2022 (relevant paragraph [79] confirming there is no footage from Blacktown Hospital);

14. Statement of Paul Thorley dated 23 May 2022 (another patient at the hospital, and the partner of Ms Williams);

15. Statement of Kylie Williams dated 23 May 2022 (another patient at the hospital and the partner of Mr Thorley); and

16. Revised Crown Case Statement dated 15 May 2025.

17. The accused tendered two further items:

18. Transcript of the arrest of the accused on 7 January 2022 at 7:19pm; and

19. Interview with the accused by NSW Police officers (Singh and Screech) on 8 January 2022 at 10:15am.

20. Constable Jabbour and Mr Thorley were both called to give oral evidence on the voir dire. A summary of their evidence appears below.

Facts as set out in Crown Case Statement dated 15 May 2025

11. In order to consider the arguments made by the accused, it is necessary to set out the facts in more detail. Except for the facts immediately surrounding the making of the impugned statement, the following summary comes from the Crown Case Statement dated 15 May 2025. I note that there was a later revised Crown Case Statement dated 3 June 2025, but that was not before me when I determined this particular argument.

12. The accused and the deceased were previously known to each other. The accused had previously been in a relationship with the deceased’s partner at the time of his death, Ms Erin Rogers, which had lasted for approximately six years. Ms Rogers later commenced a relationship with the deceased.

13. Ms Rogers moved into 51 Valeria Street, Toongabbie in approximately August 2021. She lived there with the deceased.

14. The accused told police about receiving a call from Ms Rogers in approximately November 2021 “begging” the accused to come to Sydney as Ms Rogers was “in fear” of the deceased. The accused was living in Queensland at the time.

15. The accused travelled to Sydney and stayed at Valeria Street with Ms Rogers and the deceased for approximately 4 weeks. The accused told police that Ms Rogers did not appear to be in fear of the deceased when he came to Sydney. The relationship between the accused and the deceased was hostile. The accused believed that the deceased was jealous of him.

16. The accused told police that in early December 2021, he was assaulted by the deceased, who also took his wallet and $280 from him. Ambulance officers attended on the accused on 10 December 2021. The accused attended Westmead Hospital on the same day for treatment in relation to the injuries he sustained during the assault, which included non-displaced rib fractures.

17. After the accused was discharged from hospital on 11 December 2021, he returned to 51 Valeria Street in an attempt to retrieve his wallet. The accused said he was further assaulted by the deceased when he returned and that the deceased had “whacked” him around the jaw three or four times on each side. The accused said the deceased showed him his wallet and said “you’re getting nothing” and “you’re not getting your wallet”.

18. The accused also had a number of belongings at 51 Valeria Street, including shoes and clothing. He was unable to retrieve any of the items and left the premises without them.

19. The accused then went to the police station, and police called the ambulance service, and ambulance officers attended. The accused complained of being assaulted by the same pair of people who had assaulted him the previous day. He said he had been pinned down, his right eye was gouged and he was kicked in the right and left flank. The accused declined to make a statement to Police.

The events of 6 January 2022

20. Mr Smith (a pseudonym) was a former partner of Ms Rogers and knew the accused. On 6 January 2022, Mr Smith saw the accused in Macquarie Street, Parramatta and had pizza with him. The accused spoke with Mr Smith about the deceased and Ms Rogers. The accused told him that the deceased had recently “stood over” and “robbed” a drug dealer. The accused told Mr Smith that “he [the deceased] was going to get stabbed” and that it would be a “set up”. The accused made reference to how to get into the deceased’s house and stated, “I am not leaving Sydney without Erin”.

The events of 7 January 2022

21. The accused went to 51 Valeria Street on 7 January 2022 at approximately 10am with the intention of getting his licence. He also wanted to give a Christmas present to Ms Rogers. This was the first time the accused had seen Ms Rogers and the deceased since the events of 11 December 2021.

22. Whilst at the premises, at the request of Ms Rogers, he apologised to the deceased. He also provided Ms Rogers and the deceased with a point of ‘ice’. The three consumed ice together. Ms Rogers also told Police they all consumed marijuana, beer and wine. The accused also offered her a benzodiazepine called Murelax.

23. The three then went shopping at Parramatta Westfield. The accused became separated from the other two. He went to Proud’s Jewellery shop where he bought a silver and 9 carat gold “Eagle” ring for $170 at 12:24pm.

24. The accused returned to 51 Valeria Street. The deceased and Ms Rogers had returned earlier. The accused showed the deceased his new ring and the deceased put it on his own hand and said, “it’s mine now”.

25. A number of residents of Valeria Street saw the accused in the street that day, including those who had gathered at 61 Valeria Street to celebrate Glen Reilly’s birthday, who lived there. One of Mr Reilly’s guests was Peter Henry.

26. The accused was seen walking up and down the road mumbling to himself. Those who saw him thought he was affected by drugs and alcohol. He was heard to yell and make comments about being robbed of a gold ring. He also made comments about having drugs stolen from him. He was upset and crying.

27. The accused had a conversation with Peter Henry at the front of Glen Reilly’s house at 61 Valeria Street, during which the accused appeared to be “really angry” and was explaining that he had just been robbed. The accused said, “oh, I’m gunna go and stab him, I’m gunna sort this out”.

28. Mr Henry’s partner, Tegan Grant, also heard the accused make comments about the ring and heard him “angry screaming”.

29. The accused was seen looking through the rubbish pile at the end of the street. Ms Grant saw the accused carrying a black bag, taking items out of the pile and putting them in the bag. The accused remained at the rubbish pile for between half an hour to an hour.

30. Mr Henry and Mr Reilly remained at the party for a period of time, after which they left the party and walked up the road towards 51 Valeria Street. Glen Reilly and another neighbour Kim Ferraris said they went up to get cigarettes from Kim’s house, whilst Peter Henry said they went towards the house after hearing yelling.

31. Mr Henry heard yelling at the house which included: “You’re not getting it back, it’s too late”. He also heard a female screaming.

32. The deceased said to Mr Henry “What do you fuckin’ want?”, “What are you doing here?”. Mr Henry said he wanted the arguments to stop. The accused approached Mr Henry, at which point the deceased dropped the dog he was carrying and the dog latched on to Mr Henry’s leg.

33. The deceased also approached Mr Henry. Mr Henry pushed him. The deceased came forward again towards Mr Henry and continued yelling. Mr Henry punched the deceased twice, once with his left fist and then with his right fist. The blows connected on the left and right side of the deceased’s chin.

34. Whilst standing directly beside the accused, Mr Henry saw the accused come up “underneath him [the deceased] and do two movements that he though may have been punches”. Mr Henry described the first movement as being up “near the face”, however he did not see where on the deceased the blows connected.

35. It is the Crown case that this is when the accused inflicted the fatal stab wounds on the deceased.

36. Mr Henry stepped back. The deceased was holding his chest and said: “You got me in the heart”. Mr Henry asked Mr Naylor if he was alright.

37. The accused left the scene. The deceased walked toward the door of his house. Mr Henry left the immediate area, although he returned shortly after with Mr Reilly.

38. Mr Henry spoke with Ms Rogers and told her she should check on the deceased who was lying face up near the entry door to 51 Valeria Street.

Peter Henry’s movements

39. Mr Henry left the area of the house at 51 Valeria Street and returned to Mr Reilly’s house. He spoke briefly to his partner Ms Grant telling her “we’ve gotta go”, before saying “just go, I’ll catch up with you”, after which Mr Henry ran away.

40. Mr Henry walked to Seven Hills Plaza and entered the underground carpark. He approached Mr Jones (a pseudonym), and asked him for a cigarette, and then asked him if he could buy Mr Jones’ jumper from him. Mr Jones simply gave him his jumper.

41. Mr Jones heard a police helicopter and asked Mr Henry if they were looking for him. Mr Henry said, “I was at my mate’s house having a drink with my brother and that. And I got into a fight. I had a fight.” Mr Henry also said, “I ended up hitting him three times and it was over. Three hits and I dropped him”.

42. Mr Henry and Mr Jones then entered the Seven Hills Hotel for about 10 minutes. At one point Mr Henry put on Mr Jones’ hat. Mr Henry left the hotel with Mr Jones and walked to Toongabbie train station. Mr Henry offered Mr Jones money and said Mr Jones could come to his house in Penrith. Mr Jones declined the offer. Mr Henry provided Mr Jones with his phone number before Mr Henry left by train.

43. Mr Henry called his mother, Karen Kelly, from a pay phone near Quakers Hill train station. Mr Henry told his mother that he had a fight with someone and that he “thinks he really hurt him”. His mother picked him up a short time later. She noticed injuries on Mr Henry’s thigh and he said he had been bitten by a dog. Ms Kelly took photos of the injuries.

44. In conference with an ODPP solicitor, Mr Henry said he told his mother:

That I hit him yes, and that I thought it was my hit that killed the person but then I found out it was opposite to that.

Glenn Reilly’s movements

45. After the incident in which the deceased was fatally stabbed, Mr Reilly returned to his home at 61 Valeria Street.

46. Police later spoke to Mr Reilly who said he saw some of the altercation. He told police that he had walked towards 51 Valeria Street with Mr Henry and Ms Ferraris who lived at 53 Valeria Street. They had intended to get cigarettes from Ms Ferraris’ home.

47. Mr Reilly said that when they walked out of Ms Ferraris’ home he saw a “scuffle” involving the deceased and the accused. He said the scuffle came close to Ms Ferraris’ door. He saw them both “scuffling” and “wrestling”. They were fighting, punching and wrestling near Peter Henry. Mr Reilly said he saw Mr Henry swing the pair around to help Mr Reilly and Ms Ferraris leave the area where the accused and deceased were fighting. Mr Reilly said he saw Mr Henry punch the deceased once.

48. Mr Reilly also told police there was arguing and yelling between himself and Ms Rogers. Ms Rogers called for him to go, and after Mr Henry came out there was still “commotion going on out here for a fair while”.

49. Mr Reilly said that at no point did he see anybody holding anything, not even the accused. He said he did not think he could have been holding anything from what he saw.

Telephone intercepts and listening device recordings.

50. As part of their investigation, police intercepted the telephones of various people, including Glen Reilly and Peter Henry, as well as placing listening devices into the homes of those men, and others.

51. Mr Reilly and Mr Henry were recorded talking, in discussions between themselves and with others, about the events of 7 January 2022. The men were recorded talking, in discussion between themselves, and with others, about what they might say to the police about the events of 7 January 2022. Mr Henry was recorded, on various occasions, telling his partner that he did not kill or stab the deceased. It is the Crown case that none of the persons recorded suspected their conversations were being monitored.

Accused’s movements after the events the subject of the charge

52. After the accused left the vicinity of 51 Valeria Street, he entered an unoccupied premises at 11/27 Valeria Street, Toongabbie where he hid. CCTV footage captured images of the accused holding a piece of wood whilst making his way to 27 Valeria Street. That wood was located in the bathroom of that unit.

The arrest of the accused

53. Police entered 11/27 Valeria Street, Toongabbie where they located and arrested the accused. He was in the rear hallway of the residence. He was bleeding from a cut to his head, and there was blood on his head and face. He was handcuffed and appeared distressed. He was not wearing a shirt.

54. A brown blood-stained shirt was located within the unit which later returned a DNA result matching the accused. The DNA of the deceased was not detected on the shirt of the accused. DNA testing of swatches of the blood stains were unsuccessful.

55. One of the arresting officers was wearing a body-worn video camera which was operating. Part of the recording includes the accused stating that “this mongrel Shane” attacked him, “he started to slash, bashed me and slashed me” and “I done nothing”. The accused stated he had “a fucking razor blade or something and he started slashing me” and that “I run, I run. I ran, Sir.” He denied hitting him back at all. He claimed to have the block of wood in case he was followed.

56. The accused further stated that the deceased “king hit me twice”, and that “then I think some neighbours stepped in”. Further, “After he king hit me and some neighbours stepped in right because they got sick of him standing over me”; “I don’t know what they’d done, honestly. I think old mate hit him once right”.

57. The accused then asked the police how the deceased got injured. The police said that he had some stab wounds on him. The accused stated “Stab?” “No, sir. I never, oh, no way”.

The alleged hospital admission

58. The accused was conveyed to hospital to have his head laceration cleaned and sutured that night. It was while waiting at the hospital that the alleged admission is said to have occurred. Whilst at the hospital, the accused spoke to a woman, Kylie Williams, sitting next to him in the reception area.

59. Evidence was given by both Constable Jabbour and Mr Thorley on the voir dire. A video walk-through with Constable Jabbour was played. It emerged that on the night in question Ms Williams was an involuntary patient under the mental health legislation, and that Mr Williams was also feeling mentally unwell, albeit he was a voluntary patient.

60. Ms Williams was sitting between Mr Thorley and the accused. Mr Thorley said that he was sitting about one metre away from the accused and could see and hear him clearly.

61. In her evidence on the voir dire, Constable Jabbour stated that she heard Ms Williams say, "I hate police. I want to shit on their graves when they die." The accused then said towards Ms Williams, "Well I stabbed a man last night. He deserved it, but the police were just doing their jobs". This was the alleged hospital admission. Ms Williams then stated, “Well I hope you get away with it then”.

62. Constable Jabbour then stated that on 16 March 2022 (that is, more than two months later) she was in the muster room at the police station with Senior Constable Tudia and Plain Clothes Senior Constable Adam Brown. Her two colleagues were discussing the writing of a statement in relation to the alleged murder of the deceased. She asked PCSC Brown “if I heard something at the hospital at the time when we had Mr Dunbar under arrest, if that should be put in my statement […] even though he wasn’t under caution at the time and I only overheard the conversation”.

63. It was made clear to her by PCSC Brown and others that she should include it, and that in future she should make a note of such a statement. The following day, Constable Jabbour participated in a video walkthrough at the hospital, and a recording was made of what she said she heard.

64. In cross-examination on the voir dire, Constable Jabbour agreed that she told PCSC Brown that the accused had said “Things like, I just stabbed a bloke and I got him good, he deserved it, and we had a fight last week”.

65. In cross-examination on the voir dire Constable Jabbour stated she could not be sure if the accused used the word “bloke” or “man” or “guy”. She agreed that in the video walk-through she was paraphrasing. Constable Jabbour said that no-one else was talking at the time, and her colleague (Senior Constable Tudia) was walking back and forth up the hallway, and she thinks he was chatting to a nurse as well. Constable Jabbour disagreed with the suggestion that it was possible that the accused said “They say I stabbed a man. They’re not so bad. They’re just doing their job”. [Emphasis added]

66. Mr Thorley gave evidence on the voir dire on the following day. He gave evidence relevantly as follows:

Q. Can you tell us what the conversation was; who spoke first?

A. Kylie spoke to him first. She said to the man, "Why are you here?" I told Kylie to mind her own business, it was none of our business.

Q. Did the man say anything addition to Kylie, when Kyle said, "Why are you here?"

A. The man turned and said, "I'm here because I got bashed and there was an incident in Parramatta about a week beforehand," that he told us he got stabbed and he also got robbed.

Q. Can you tell us, just going back over that conversation, as best you can, try to use the words that the man said?

A. Yes.

Q. Kylie said, "Why are you here?" After that?

A. The man turned and said, "I'm here because I got bashed and Kylie goes, "Really." He said, "Yes, I got bashed and I was in Parramatta last week and I got stabbed and I got robbed."

67. Ms Williams was not called on the voir dire, but a statement recorded in a police notebook and signed by her on 23 May 2022 was tendered. It included the following in relation to the hospital encounter with the accused:

I can’t remember any conversation with this man. I have a disability which causes memory loss. Because I can’t remember anything I don’t want to give a statement. The only thing I can remember was a guy saying he got bashed & that’s it. I don’t want to give a statement or go to court.

The electronically recorded interview with the accused

68. In an interview with the police the day after the incident, following his discharge from hospital, the accused told the police about his relationship with Ms Rogers and the deceased, and outlined the time he had spent with Ms Rogers and the deceased on the day of the incident.

69. He said he was “upset” because the deceased had stolen his ring. He also said he had walked up and down the road and was looking at a “rubbish pile” after which he said he decided to return to the deceased’s house to confront him about the ring.

70. He entered the front yard through a side gate, saw Rosie (Ms Rogers’ dog) come out of the house. The accused grabbed Rosie and Ms Rogers followed the accused and Rosie. The deceased also walked out of the house and asked “What are you doing Erin?”.

71. The accused said that the deceased grabbed the dog from the accused and went “bang, bang”. Blood spattered out of the accused’s face. The accused said at that point the “big neighbour” (a reference to Mr Henry) intervened and went “boom” and “knocked [the deceased] on his ass”.

72. The accused said that at this point the dog had come back outside and was down near the bins. The deceased ran down to get the dog and that is when the accused said he saw Mr Henry “give [the deceased] a couple” and that Mr Henry “followed him, went whack and dropped him in one hit”. He said he saw nothing in Mr Henry’s hands. The accused also made reference to Mr Reilly also possibly hitting the deceased.

73. The accused said he told Mr Henry “that’s enough” and at this point the deceased had risen to his feet, and the accused felt a “slash” and that the deceased started “cutting up” the accused. The accused ran from the area as he thought the deceased was chasing him. The accused stated he did not see what happened to the deceased after that and denied seeing any blood on the deceased.

74. The accused left with a plank of wood and had a computer bag with him. He left his computer bag under a nearby car. He denied taking a box cutting knife out of the house. He denied murdering the deceased.

75. He was released, without charge, that day.

Ms Erin Rogers

76. Ms Rogers spoke to attending police and later made a formal statement. She said that shortly before the altercation the accused was inside preparing to use drugs and placed some items in his bag which did not belong to him.

77. She said she called the deceased and told him to come to the house, saying that the accused was kicking things around inside the home and saw him take a yellow handled box cutting knife out of its packaging. The deceased told Ms Rogers he was outside. Ms Rogers warned the deceased that the accused had the knife.

78. Ms Rogers said that she opened the door, her dog ran between her legs and outside, and that the accused ran out of the front gate, passing two men who were entering. The accused said to the men, “I’m trying to protect the girl”.

79. She saw her dog bit the larger of the two men (Mr Henry). She stated that the other man (Mr Reilly) said to her: “you’re a slut. You deserve everything you get. You get robbed for a reason”. Ms Rogers said this man then grabbed her hair and tried to pull her onto the ground.

80. At this point Ms Rogers said she saw Mr Henry attacking the deceased with a yellow box cutting knife in his right hand, and that he pushed the knife into the deceased’s chest. Ms Rogers heard the deceased yell out “he got me in the chest” and fall backwards on the ground.

81. Ms Rogers claimed she then started punching Mr Reilly in the chest. She reported some further conversation with Mr Henry and Mr Reilly, and saw Mr Henry look at the deceased and say “I think he’s gone.” As both men walked away, she commenced CPR on the deceased. As the men were walking away, she heard one of them say: “I hope he dies like the dog he is.”

82. Ms Rogers died on 15 January 2022 in unrelated circumstances.

Crime Scene Examination

83. Police established a crime scene soon after the killing. A crime scene officer attended 51 Valeria Street, Toongabbie at 9.30pm. A number of items were located including:

84. a single edge knife blade positioned under the left hand of the deceased. It had a 12.5cm long blade with a broken and bent tip (Marker E), with no handle, and with blood stains at the tip with DNA matching that of the deceased;

85. A yellow and black box cutter located on the pathway, with matches to the deceased from a trace DNA swab from the slide; the blood on the box cutter, and the fingerprint on the box cutter; and

86. A Nokia black mobile phone.

87. Blood spots found at the crime scene matched the deceased, including on the path, and on the external side gate.

88. Under a car at 6/27 Valeria Street, Toongabbie, a black laptop bag was located with DNA matching the accused on the shoulder strap, together with a wallet containing identification belonging to the accused. Next to the car were two spots of diluted blood staining which matched to the accused.

89. Paramedics arrived at 6:36pm, and the deceased was pronounced “life extinct” at 6:41pm. The deceased was wearing the ring purchased by the accused earlier that day.

Summary of deceased’s time of death and injuries

87. An autopsy performed on 11 January by Dr Kendall Bailey concluded the cause of death to be sharp force injuries to the chest. There was a 23mm long sharp force injury to the deceased’s front left of his chest, which penetrated the pericardial sac and right ventricular wall of the heart, with the trajectory backwards, upwards and slightly medial, which was considered independently fatal.

88. There were three other sharp force wounds on the accused’s upper left back. Dr Bailey also identified sharp force injuries of the scalp and torso as well as widespread bruising and abrasions of the face, neck, torso and limbs. Toxicology testing showed a number of substances present including methylamphetamine, morphine, buprenorphine, oxazepam, alcohol, cannabinoids and codeine.

Extradition and charge

89. The accused was arrested by Queensland Police on 5 July 2022 and was extradited to New South Wales on 10 January 2023. He exercised his right to silence and declined to be interviewed by police.

The accused’s challenge to the alleged hospital admission

90. As noted above, the accused challenges the alleged hospital admission relying upon three sections of the Evidence Act, namely ss 90, 135 and 137.

91. I first turn to s 90 of the Evidence Act. Section 90 is a discretionary provision. It reads:

90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

92. As stated in R v Em [2003] NSWCCA 374 at [104]:

“The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated […].”

93. The onus is on the accused to satisfy the Court that the evidence should be excluded on the basis that having regard to the circumstances in which the admission was made it would be unfair to the accused for the prosecution to use the evidence: Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [63]. The probative value of the evidence is not relevant for consideration pursuant to s 90: R v Em [2003] NSWCCA 374 at [110].

94. The accused submitted that the overall circumstances yielded a situation where reliance on Constable Jabbour’s recollection held significant danger of unfairness. It was contended there was some imprecision in the precise words used. The focus of the accused’s argument, however, was that the delay in the recording of the alleged admission (by any means) meant that the accused was denied meaningful opportunities for it to be challenged. This includes the failure to put the alleged admission to the accused at his recorded interview which occurred on 8 January 2022, at a time when the accused had “real prospects of being able to address the suggestion in detail and by reference to the actual words used.” Further, CCTV footage was lost to assist in gauging the plausibility of hearing such representations in an Emergency Department that was being used by hospital staff and the public.

95. The accused further contended that although there were two other Crown witnesses whose evidence contradicts Constable Jabbour’s, Constable Jabbour’s evidence, given she is a police officer, would attract special status and disproportionate weight.

96. As stated in Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [56], “[i]n any particular case the application of s 90 is likely to be highly fact-specific.”

97. I am satisfied that Constable Jabbour’s account of the alleged admission is, except for whether the word “bloke”, “man” or “guy” was used, consistent and precise. She adhered strongly to her account of what she heard in her evidence on the voir dire. I do not find her evidence unreliable. The alleged admission was spontaneous and voluntary, made to a fellow patient in a waiting room. The evidence involves no suggestion that the alleged admission was made that would not otherwise have been made because of any action by any police officers.

98. The delay in the noting down of the admission is obvious on its face. Further, the jury will have the evidence from the other patients in the waiting room which not only does not accord with Constable Jabbour’s account, but accords with the accused’s account in his recorded statements to police. Constable Jabbour’s obvious failure to make a contemporaneous note can also be readily emphasised before the jury in cross-examination and in closing address. These matters diminish to the point of relative insignificance any prejudice suffered by the accused in not being able to obtain CCTV footage, or the lost opportunity at interview to clarify what was meant by the words allegedly said.

99. In the particular circumstances of this case, I do not accept the contention that more weight would be attached to Constable Jabbour’s account by the jury because she is a police officer. The video walkthrough involving the Constable shows her as a very young, newly admitted police officer highly embarrassed by the situation she was in. I am not of the view that her evidence would attract special status nor be given disproportionate weight. Further, even though Constable Jabbour rejected the suggestion in cross-examination that she missed the words “they say” before the accused stated “I stabbed a guy” – two words which could be seen to totally undermine the force of the alleged admission – the suggestion that those words were said will be before the jury along with the other factual circumstances surrounding the alleged admission.

100. The accused has failed to satisfy me that the circumstances in which the alleged admission was made which would render the use of the alleged admission unfair. The challenge based on s 90 of the Evidence Act fails.

101. I now turn to s 135 of the Evidence Act. This is a discretionary provision as well. The accused relies on subss (a) and (c). First, turning to (c) I am not convinced that there will be any particularly lengthy additional time as a result of the evidence being led, such it would cause or result in undue waste of time.

102. The gravamen of the argument under s 135 of the Evidence Act is based on subs (a): that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused.

103. I am of the view that the probative value of the admission, when taken at its highest is significant, indeed very significant, and that the probative value is not substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused. I am of the view that the weight that should be given to the alleged admission is a matter for a jury appropriately instructed, to determine. The lack of a contemporaneous note by the police officer is a matter which can clearly be explored in evidence, along with the other matters stated above.

104. I now turn to s 137 of the Evidence Act. I note this is not a discretionary provision but rather requires an evaluative assessment followed by a mandatory determination of exclusion if the Court concludes that the danger of unfair prejudice outweighs the probative value of the evidence. The onus is on the accused to satisfy the Court that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused.

105. In my view, the probative value of the evidence, which I have observed when taken at its highest is very significant, is not outweighed by the danger of unfair prejudice to the accused. What to make of the evidence in relation to the admission is a matter for the jury following submissions from counsel and as appropriately instructed by me. The matters which may undermine the cogency of the evidence can be properly highlighted in cross-examination and in counsel for the accused’s address to the jury. I will give clear directions in relation to how the jury is to approach evidence of an alleged admission which includes that they first have to accept that the admission was made. I will point out that the alleged admission was not recorded by way of an intercept or body worn video, nor was it the subject of a contemporaneous note, and it is fiercely in contest. I will further give a direction on the basis that this is hearsay evidence which may be unreliable (pursuant to s 165(1)(a) of the Evidence Act). I will direct the jury that such evidence relies on a combination of perception, memory and narration skills of the witness who heard the alleged admission; that the jury should keep in mind that in re-telling or repeating the original words that the witness thought they heard may not be accurately recalled or repeated, and they will also need to consider whether or not it was susceptible to falsification or the product of suggestibility or influenced by stress or pressure.

106. Accordingly, the challenge to the alleged admission fails, and I decline to exclude the evidence of the alleged admission.