[2025] NSWSC 597

R v Evans; R v Evans (No 3)

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) § 55, 66, 137

Judgment

[1]
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.
[2]
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).
[3]
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.
[4]
Section 66(3) of the Evidence Act provides:-
[5]
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).
[6]
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.
[7]
I reject the evidence of the video walkthrough time stamped at 14.22 pm to 15.10 pm.