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[2026] NSWSC 778
Supreme Court of NSW
2026-07-01
Campbell J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Lardner [2026] NSWSC 778
Hearing dates: 1 July 2026
Date of orders: 1 July 2026
Decision date: 01 July 2026
Jurisdiction: Common Law
Before: Campbell J
Decision: Pursuant to s 137 of the Evidence Act 1995 (NSW), admission of the evidence contained in the second sentence of paragraph 11 of Mr Donovan’s statement is refused.
Catchwords: EVIDENCE – exclusion of prejudicial evidence in criminal proceedings – where probative value of the evidence is slight – offensive and aggressive language
Legislation Cited: Evidence Act 1995 (NSW), ss 32, 60, 61, 137
Category: Procedural rulings
Parties: Rex (Crown)
Conrad Peter Lardner (Accused)
Representation: Counsel:
B Costello (Crown)
D Stewart (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Ross Hill & Associates Solicitors (Accused)
File Number(s): 2023/ 00157957
Publication restriction: Nil
HIS HONOUR: Mr Les Donovan, who, as at March 2023, resided at 47 M Street, South Kempsey, is giving evidence before me in the trial of Mr Conrad Lardner for the murder of Mr David Vale. Mr Donovan knew Mr Vale very well: “all my life”, he said. He also knew Mr Lardner very well: again, he said, “all my life”. In common with a number of the lay witnesses who have given evidence before me in this judge alone trial, given the passage of time, Mr Donovan's memory is not pristine. When answering a question about whether he recognised any of the voices contributing to a commotion in the street, which he said he could hear from his backyard, he said the words were not distinct, and added, "It has been three years."
In response to that answer, the learned Crown Prosecutor has foreshadowed an application that Mr Donovan should be permitted to attempt to refresh his memory in court under s 32 of the Evidence Act 1995 (NSW) (“Evidence Act”) by reference to his police statement made on 30 March 2023. The notebook of Detective Senior Constable T Smith contains the handwritten account, signed by Mr Donovan, which has since been transcribed, and I have been given both a photocopy of the original and the transcription.
In the absence of Mr Donovan, who is waiting outside the court, Mr Crown has indicated to Mr Stewart and then to me that, in order to elicit the evidence he expected would be forthcoming in answer to the question about whether any voice was recognised, he wishes Mr Donovan to have regard to the contents of para 11 of the transcript of the handwritten statement. Mr Stewart, quite apart from any question about the revival of memory, objects to a part of the evidence foreshadowed being given. Paragraph 11 of the statement is in the following terms, and I will quote it verbatim:
"Prior to Dave driving off, Robert Dixon, who I have known all my life, was following Dave out of 74 [M] Street. I could hear Robert saying, 'Don't come around here, you Greenhill cunt.' Dave did not reply. As the night was so quiet, I could hear Dave's car travel down [M] Street and turn right into [RE] Street. At this time, I got off the handrail and finished off the rest of my bong with Michelle." (My emphasis.)
The portion objected to is the second sentence, which I will repeat for clarity: "I could hear Robert saying, 'Don't come around here, you Greenhill cunt.'"
The Crown seeks to have the statement attributed to Mr Dixon admitted, and it is submitted that the evidence is relevant, because if it were accepted, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. The fact in issue in the proceedings which the Crown referred to is the question of what happened in and around 74 M Street. From the opening of counsel, both the learned prosecutor and Mr Stewart, of learned counsel who appears for Mr Lardner, there is an issue about who was the aggressor in the ultimately fatal confrontation which took place between Mr Vale and Mr Lardner in and around 74 M Street.
The Crown case is that Mr Lardner was the aggressor and that, in his aggression toward Mr Vale, culminating in him stabbing Mr Vale fatally, he was supported by a number of retainers, as it were, being persons who were also present, some of whom may have resided, in the premises at that time. Effectively, it is put that those persons were likely to be supporters of Mr Lardner and that the statement attributed to Mr Dixon, being in the nature of an offensive, aggressive ‘send-off’ to Mr Vale, is evidence that goes to that fact, perhaps not on its own, but in conjunction with the other evidence that the Crown expect to lead in relation to that topic.
In response to Mr Stewart's accurate submission that the matter is hearsay, the Crown submits that, giving full weight to that objection, the statement is hearsay relevant for a non‑hearsay purpose in accordance with s 60(1) of the Evidence Act. Clearly, there is no representation of fact contained in the statement and it would be impossible to prove or assume the truth of the matters in the statement, as they are expressed anyway, because it is an insult or offence offered to Mr Vale, not an assertion of fact. The Crown rely on the fact that a person present at the premises at the time of the confrontation, which resulted in Mr Vale's death, offered him an offensive insulting send-off, says something about who was the aggressor, especially given, as the Crown would have it, that Mr Vale was clearly leaving when the offence was offered to him. According to Mr Donovan's statement, he chose not to reply.
Mr Stewart responds that it is not clear what other evidence will be added to this evidence to make it probative of the circumstance which the Crown is seeking to establish, and he submits that, even where I against him on the question of admissibility on relevance and hearsay grounds, I should exclude the evidence pursuant to s 137 of the Evidence Act on the ground that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant.
Although this is a judge alone trial and there is no jury to be prejudiced in their thinking, I am required, as it were, to treat myself as though I were a jury in terms of application of the rules of evidence, directions of law, and cautions and warnings that would normally be given to a jury if it were empanelled to determine the ultimate question of Mr Lardner's guilt or innocence of the charge. Section 137 does not involve any question of discretion. I am required to undertake an evaluation of the balance that the section speaks of, and if I am of the view that the probative value of the statement is outweighed by the danger of unfair prejudice, I am obliged to exclude the evidence. I repeat the question is not one of discretion.
A factor that Mr Stewart relies upon, of course, is that the person who uttered the offence is Mr Dixon, not Mr Lardner, and the Crown has informed Mr Stewart and the Court that Mr Dixon will not be called. I assume, for the present judgment, that his “unavailability” could be established, although that is not an essential condition for the operation of s 60(1). It is also Mr Stewart's submission that from the evidence I have heard so far from Mr Donovan and from the passage in the statement upon which reliance is placed, Mr Donovan does not say that the statement was made in the presence of or within the hearing of Mr Lardner.
I also bear in mind that Mr Donovan gave evidence that when he heard the commotion he was in the backyard of his home and it is clear to me from other evidence I have heard in the case, that by the time he puts himself in the position to see by standing on a railing, Mr Vale was heading for his car, and the fatal confrontation was probably over. That is to say, the fatal confrontation between Mr Lardner and Mr Vale during which the latter was stabbed, assuming that I accept Mr Donovan's evidence as being reliable.
While I am of the view that the fact that the offensive ‘send-off’ was uttered by a person associated with the premises at what appears to be the end of the confrontation is relevant and admissible as an exception to the hearsay rule as submitted by the Crown, I regard its probative value, even in conjunction with other evidence, as slight. I am of the view, given the offensive, perhaps aggressive, nature of the utterance, that there is a danger of unfair prejudice if this evidence is admitted from the mouth of Mr Donovan. In my judgment, that unfair prejudice outweighs the slight probative value of the evidence. I am bound to refuse to admit the evidence in accordance with s 137. Accordingly, I refuse the admission into evidence of the words contained in the second sentence of paragraph 11 of Mr Donovan’s statement.
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Coversheet: Name of the solicitors for the Defendant amended.
Catchwords: The word "a" is deleted
Anonymisation
R
Lardner