R v Fitzpatrick (No 4)

There was no objection to the words of a threatening nature that, according to Mr Thompson’s evidence, Mr Burrows asserted Mr Fitzpatrick had said. There is now an objection to an amplification of that evidence based upon Mr Thompson’s statement to the police of 11 August 2015, and in particular to the first sentence of paragraph [17], which is in these terms:

I apprehend, and counsel have confirmed, that the basis of the admissibility of this evidence is said to be s 66A of the Evidence Act 1995 (NSW), which is in the following terms:

In this respect s 62(3) of the Act is relevant. It is in these terms:

I am just not satisfied, in the face of Mr Price’s objection, that the first sentence of para 17 is properly admissible, and I reject it.

If I am wrong in my approach to admissibility, then I am of the view that s 137 of the Evidence Act has been engaged, and that the probative value of Mr Thompson's proposed evidence on this particular topic is outweighed by the danger of unfair prejudice to the defendant. In particular that the jury might place undue weight upon that aspect of the evidence, notwithstanding any direction that I might give them.

The force of my conviction in that regard is bolstered again by the consideration that Mr Price has already asked me to give the jury - which I have done - a s 165 warning in respect of this passage of the evidence. It seems to me that, given the question mark about the reliability of such evidence, that s 137, as I have said, does have a role to play, and I reject the questions designed to elicit evidence in accordance with para 17 of the statement, which I will have marked for identification as MFI 11. I am referring to the statement of Andrew Thompson of 11 August 2015.