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1. HIS HONOUR: Ms Leearna Davis is a person whose name figured large in this trial and she was, as other interlocutory judgments of mine demonstrate, eventually brought to court under a bench warrant I issued under s 194 of the Evidence Act 1995 (NSW) (“the Evidence Act”) on 3 July 2026.

2. She was called to give evidence and, with the assistance of her legal representatives, made an objection to giving evidence on the basis of s 18(2) of the Evidence Act. I overruled that objection for reasons I expressed in a separate judgment: R v Lardner (No 6) [2026] NSWSC 845

3. Her evidence was then received on the voir dire by way of Basha inquiry. This was necessary, as perhaps other judgments explain, because, while the objective facts strongly suggest she was present when Mr Lardner, the accused, stabbed Mr Vale, the deceased, and was, therefore, an eyewitness, she had, as is her right and I do not criticise her for this, refused to make any statement or otherwise co-operate with police in relation to their investigation into the death of Mr Vale.

4. She was eventually charged with hindering the apprehension of Mr Lardner, to which charge she pleaded guilty and the agreed facts signed by her were admitted in evidence on the voir dire. By them, she admitted assisting Mr Lardner into a vehicle driven by Ms Holten, who has also given evidence over her objection, immediately after the fatal incident between Mr Lardner and Mr Vale. Ms Holten drove Mr Lardner away to a nearby locale. At about the same time, although fatally wounded, Mr Vale was able to drive himself away in the car he had arrived in a short distance to a relative’s home. I will say that a number of witnesses in this case called by the prosecution, whom the objective evidence tends to suggest should have witnessed part or all of the confrontation between Mr Lardner and Mr Vale, have either denied they saw anything or appeared unable to give an account of what they saw.

5. These witnesses presented variously in terms of the degree of impressiveness or otherwise that one might attribute to them. But Ms Holten, whom I have mentioned, arguably Ms Sandy Davis, Mr Lesley Dean Davis who, on the evidence, was probably present in the immediate aftermath and not at the time, and also Mr Cyril Davis, seemed unable to give accounts of things which one might have assumed they would have been in a position to see, hear or otherwise perceive. Mr Lucas Dumas also gave evidence which was perhaps somewhat confusing in as much as he recanted what was a clear account he had given to police on the morning after the stabbing, and his recantation became more firmly entrenched the longer his evidence went on. There will be considerable difficulty in determining questions of fact in the case, given that state of the evidence.

6. I offer those observations which are, of course, entirely provisional at this stage, to explain my ruling in relation to the evidence of Ms Leearna Davis. As I have said, her evidence was received on a Basha inquiry, and as I have remarked and discussed with counsel during the argument about whether her evidence should be admitted as part of the evidence in the trial, her oral testimony taken in isolation does not advance the Crown case. Mainly because she denied, initially, even being present. That denial was not really adhered to, but the whole of her evidence, notwithstanding the significance of the events for which she was present, consisted of various verbal formulations of a complete lack of recall for salient aspects of the course of events. There is no medical evidence before me to explain why a person would have a total lack of recall for these events which occurred only, really, three and a half years ago, notwithstanding the erosion of human recall over time due to its inherent frailty. It is very unusual for a person who had been present when events like this happened, at least in the experience of the Courts, to have no recall whatsoever of the events.

7. As was permissible in the circumstances and was not objected to, quite properly, by Mr Stewart of counsel for the defence, the Crown was entitled to cross-examine Ms Davis upon out of court oral prior inconsistent statements she had made to various persons on the very night that Mr Lardner stabbed Mr Vale, each of which she steadfastly denied. Although the language she used made it difficult to know whether she was denying that such things were said or that such events occurred, or whether she was expressing with differing degrees of strength her assertion that she had no recall.

8. The only reason why a Basha approach was adopted, given that I am sitting alone without a jury, is because of the inability of the prosecution to have served a prior account of Ms Davis in accordance with case management requirements of the Criminal Procedure Act 1986 (NSW). That is to say, the procedure was adopted for the benefit of the defence, so that they could hear her evidence before it was received, even though I repeat the jury box is empty. Ordinarily in the judge alone trial, had the witness given any account whatsoever, she would have been called as a witness without objection and been cross-examined about it by counsel for the defence if Mr Stewart elected to do so.

9. The Crown now asks me to receive her evidence as part of the evidence in the trial. Mr Stewart objects to it on the basis that it is not relevant. If it is relevant, its relevance and its related probative value are low and are greatly outweighed by the danger of unfair prejudice to the accused. The danger of unfair prejudice relates to the factors that may be perhaps compendiously rolled up for present purposes, first, in that the Crown may seek to make much of the consideration that Ms Davis, and perhaps other witnesses, have not given an account which supports the principal issue ventilated in these proceedings of whether Mr Lardner acted in self-defence. Secondly, there are a number of, as I have said, prior inconsistent oral statements allegedly made by her which the Crown will seek to rely upon, which are couched in language which might be capable of being used prejudicially against Mr Lardner, particularly if a jury had to make the decision.

10. It seems to me that there are a number of factors which favour the admission of the evidence. The first factor is the Crown’s obligation to call all available witnesses whom the evidence demonstrates ought to have been in a position to add material evidence to the narrative of fact, which is his obligation to lay before the tribunal of fact, even were the ultimate issues have been narrowed by the conduct of the defence.

11. It is not uncommon that witnesses who have made statements do not come up to proof. It is not uncommon that they resile entirely from the statement they made to police. It is also, it seems to me, necessary to receive her evidence in order to provide an evidential platform against which the assessment of the admissibility of the prior inconsistent statements, to which I have referred, maybe judged. Obviously, it would be entirely impermissible for a jury, and for me as the tribunal of fact, and I so direct myself, to sheet-home any forensic prejudice to the accused if I ultimately form a dim view as to the effort with which Ms Davis and the other witnesses to whom I have referred were making to give an accurate account.

12. Although it is a matter for further argument, it seems legitimate that the Crown can rely upon the absence of an account laying a foundation for self‑defence from the body of evidence that the Crown have been able to lead in the course of the trial. However, if the accused chooses to give evidence (and if he does not, naturally, no adverse inference will be drawn) his evidence will be assessed on its merits and according to the consideration that the Crown carries the onus of proof, the standard of proof is beyond reasonable doubt, and includes an obligation to negative self-defence. That onus never shifts in any way during the whole course of the trial, regardless of whether or not the accused chooses to give evidence in his own defence.

13. I think that the evidence of Ms Davis is relevant for the purposes I have identified in this judgment, and I am not satisfied that the admission of it creates a situation where the danger of unfair prejudice to the accused is outweighed by its probative value.

14. Accordingly, the evidence of Ms Davis given on a Basha inquiry on the voir dire will stand as evidence in the trial.

(Having ruled the evidence of Ms Davis admissible, his Honour heard further argument about admissibility of hearsay statements attributed to Ms Davis by other witnesses)

15. Following on from my earlier judgment about the admissibility of the evidence given by Leearna Davis on the Basha inquiry, the Crown seeks to admit hearsay evidence of two witnesses, who were called to give evidence, attributing statements to Ms Davis. Those statements have already been received so far as they concern this ruling. The first statement is that of Cyril Davis of 26 April 2023 (Exhibit 26) and the second is the statement of Lesley Dean Davis of 14 April 2023 (Exhibit 27).

16. They, on the one hand, could recall statements made by attributing words to Ms Davis when interviewed by police, and on the other hand, out and out denied them. I am thinking in that regard of the statement of Mr Lesley Dean Davis. Although, in response to questions asked by me, the Crown has outlined in some detail the legal basis of the admission of these hearsay statements by reference to ss 43, 45, 60, and 106(2) of the Evidence Act*,* the principal objection of Mr Stewart is of a particular statement attributed to Ms Leearna Dean by Mr Lesley Davis at para 21 of his police statement, Exhibit 27.

17. Mr Davis was not present when Mr Lardner apparently stabbed Mr Vale, but he arrived on the scene very soon afterwards on his bicycle, him having been quite nearby at a relative’s home. When he arrived, he asked Ms Davis about what happened between Mr Lardner and Mr Vale. Ms Davis, according to the police statement, said, “David and Conrad had a fight. [But] Conrad got him a gooden (sic)”. Mr Lesley Davis then asked, “What, did he drop him?” to which he said in his police statement, Ms Davis replied, “No, he got him straight up the ribs. He got him a gooden(sic)”.

18. He also added that she appeared to be excited when she said this. I interpolate that what I make of that last sentence will be a matter for addresses in due course. After further discussion, Ms Davis is said to have volunteered for a third time, “He got him a gooden (sic) with a knife”. Mr Stewart objects to that part of the statements attributed to Ms Davis, “He got him a gooden” where it appears on each occasion. He points out with respect, correctly, in my opinion, that that statement is not a representation of primary fact of something she saw, heard, or otherwise perceived, but rather a statement of opinion about her appreciation of the nature of the blow after the event.

19. In my view, it is not an admissible lay opinion under s 78 of the Evidence Act. Lest I be wrong about that, I accept Mr Stewart’s submission that that part of the representation should be excluded under the provisions of s 137 of the Evidence Act in as much as what limited probative value it has over and above the plain statement that Mr Lardner, “Got him with a knife straight up the ribs” is doubtful. It is colourful language, which is of a type, were there a jury trying this case, is likely to be inflammatory and prejudicial. Although I am not a jury, it seems to me that the pejorative nature of the language carries with it a danger of unfair prejudice to the accused in the fact-finding exercise.

20. I am of the view that that danger does outweigh the probative value of that statement. To some extent, it is reminiscent of the statement excluded in Ridgeway v R [2024] NSWCCA 85 to which I was referred to earlier for a different purpose. Although the inflammatory statement in that case was a statement attributed to the accused, not a lay witness, it does have similar hallmarks. There is also a similar circumstance that in that case, that statement was attributed to the accused by an eyewitness who later denied hearing it. The Court of Criminal Appeal were of the view that the matter was not admissible as it was second-hand hearsay evidence of an admission by the accused, which was highly prejudicial, and it should have been excluded.

21. The special provisions relating to admissions by accused persons do not apply here because Ms Davis is a witness, not an accused. However, the circumstance of the Court of Criminal Appeal regarding a statement of that type as being highly prejudicial provides me with some guidance as to the correct approach here. I will utilise Exhibit 27 for all purposes, but I exclude from it under s 137 of the Evidence Act in para 21 of it in the second-last line, “But Conrad got him a gooden” and in the last line, and “He got him a gooden”. In the third line, the repetition of, “He got him a gooden with a knife” is to be read as ‘he got him with a knife’.

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