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[2025] NSWSC 597
General information, not legal advice.
Supreme Court of NSW
2025-06-10
Weinstein J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Evans; R v Evans (No 3) [2025] NSWSC 597
Hearing dates: 3-4 June 2025
Date of orders: 4 June 2025
Decision date: 10 June 2025
Jurisdiction: Common Law
Before: Weinstein J
Decision: I reject the evidence of the video walkthrough time stamped at 14.22 pm to 15.10 pm.
Catchwords: EVIDENCE – criminal proceedings – discretions – exclusion of evidence – hearsay – video walkthrough – positioning of vehicles – exception to hearsay rule – where maker available – whether representations concern identity of a person, place or thing for the purpose of s 66(3) of the Evidence Act 1995 (NSW)
Legislation Cited: Evidence Act 1995 (NSW) ss 55, 66, 137
Category: Procedural rulings
Parties: Proceedings 2017/00202678
Rex (Crown)
Keith Evans (Accused)
Proceedings 2017/00202629
Rex (Crown)
John Evans (Accused)
Representation: Counsel:
Proceedings 2017/00202678
D Hannan (Crown)
M Fernando (Accused)
Proceedings 2017/00202629
D Hannan (Crown)
J Stratton SC / J Kumar (Accused)
Solicitors:
Proceedings 2017/00202678
Solicitor for Public Prosecutions (Crown)
Bannisters Lawyers (Accused)
Proceedings 2017/00202629
Solicitor for Public Prosecutions (Crown)
Archbold Gittani Lawyers (Accused)
File Number(s): 2017/00202678; 2017/00202629
Publication restriction: Publication restricted to the parties until the conclusion of the trial.
The Crown seeks to adduce evidence contained in a video walkthrough (without sound) time stamped at 14.22 pm to 15.10 pm, which was recorded on 9 August 2017. It shows Jayke Rodgers and two motor vehicles at the intersection of Byron Street and Panonia Road. The two motor vehicles are not the motor vehicles which are alleged to have been involved in the murder.
The Crown says that the evidence is relevant for two reasons. The first is because it shows the intersection of Byron Street and Panonia Road where the Triton and Kluger motor vehicles stopped. The second is to show the distance between the motor vehicles when the fatal shot was allegedly fired. He accepts that Mr Rodgers is available to give evidence. It is conceded by the Crown that any words he utters in the video are hearsay due to the operation of s 66 of the Evidence Act 1995 (NSW).
Ms Fernando, who appears for the accused Keith Evans, submits that the evidence should be excluded pursuant to either ss 55, 66(3) or 137 of the Evidence Act. She observes that Mr Rodgers is an available witness in these proceedings and can provide evidence as to what took place. Her submissions were adopted by Mr Stratton SC who appears on behalf of John Evans.
Section 66(3) of the Evidence Act provides:-
66 Exception: criminal proceedings if maker available
(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a) that person, or
(b) a person who saw, heard or otherwise perceived the representation being made,
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including—
(a) the nature of the event concerned, and
(b) the age and health of the person, and
(c) the period of time between the occurrence of the asserted fact and the making of the representation.
(3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.
(4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
Ms Fernando submits that the proposed evidence goes further than identifying a place as is permitted by s 66(3). She submits that police have in effect attempted to recreate a crime scene where the witness is not identifying a “person, place or thing”. Rather, he is visually indicating the evidence he would give in these proceedings about the crime scene, which she submits is specifically prohibited by s 66(3).
Assuming the relevance of the evidence, in my opinion, the evidence is clearly prohibited by s 66(3) as the representations do not concern the identity of a person, place or thing. There is no exception to the hearsay rule which would permit the adducing of the proposed evidence.
I reject the evidence of the video walkthrough time stamped at 14.22 pm to 15.10 pm.
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