R v Bushell; R v Tozer (No 13)

HIS HONOUR: Objection is taken to evidence to be adduced on the basis that it is unfairly prejudicial in that it discloses that the accused engaged in drug manufacture. On the basis of that it seems to me the witness, that is Lincoln Hudson, is a witness that is to be called to give evidence whether or not evidence in chief is adduced from him is irrelevant. If the witness is to be called then s 66 of the Evidence Act 1995 (NSW) applies and this is an exception to the exclusion of hearsay evidence otherwise applicable.

As a consequence two things flow: first, I do not have to worry about hearsay; secondly, given that the circumstances that each of the accused, the deceased and a number of witnesses are involved in cooking methamphetamines it does not seem to me in those circumstances for the fact of requesting or possibly requesting someone to undertake a cook is particularly prejudicial in the sense of unfairly prejudicial in the manner in which that term has been used in both ss 135 and 137 of the Evidence Act.

It seems to me in those circumstances the question becomes how can the unfair prejudice outweigh probative value? I consider that the evidence does have some probative value, it does join the dots in terms of the later conversation. In those circumstances I would allow the evidence.