Background
This is a trial concerning a stabbing that occurred on 1 March 2023 at 74 Middleton Street. The accused raises self-defense. Ms April Vale, niece of the deceased David Vale, gave evidence at trial. During her testimony, facts emerged that were not in her original police statement, prompting the Crown to obtain a supplementary statement dated 1 July 2026 containing hearsay evidence.
The hearsay concerned a phone call the deceased made to the accused on an old Nokia phone using speakerphone. The deceased demanded repayment of money, initially leaving a voicemail and later speaking directly to the accused. The grievance allegedly stemmed from the accused supplying poor-quality drugs to the deceased. The deceased was also under financial pressure, owing rent to his father and having lost money gambling at an RSL club.
The accused objected to the Crown recalling Ms Vale to give evidence in accordance with the supplementary statement, invoking section 137 of the Evidence Act 1995 (NSW). Section 137 permits courts to exclude evidence where its probative value is outweighed by the danger of unfair prejudice to the defendant.
The Court’s Holding
Justice Campbell overruled the section 137 objection and allowed the hearsay evidence. The court found that while the hearsay was admissible under exceptions to the hearsay rule (sections 65(2)(b) and 66A of the Evidence Act), the critical question was whether the probative value was outweighed by unfair prejudice. The court concluded it was not.
The evidence had “measurable probative value” concerning whether the deceased held a genuine grievance against the accused on the day of the incident—a central issue bearing on the accused’s state of mind and the self-defense claim. Although the evidence was hearsay disclosed only three years and four months after the events, and was provided with short notice mid-trial, the court determined these prejudicial factors did not outweigh its probative value. The court emphasized it would give itself a warning under section 165 of the Evidence Act to scrutinize the hearsay with care and that the accused retained opportunities to test reliability through cross-examination and subpoenas for telephone records.
Key Takeaways
- Late-disclosed hearsay evidence can be admitted in criminal trials if its probative value is not outweighed by unfair prejudice under section 137.
- Courts balance competing factors: the relevance and importance of evidence, the timing of disclosure, the nature of hearsay, and the defendant’s opportunity to investigate and test reliability.
- Hearsay admitted under statutory exceptions to the hearsay rule can still be subject to section 137 exclusion if prejudice predominates.
- Procedural safeguards—such as judicial warnings under section 165 and cross-examination rights—can mitigate the inherent risks of hearsay evidence.
Why It Matters
This ruling is significant for criminal evidence practice in New South Wales. It demonstrates how courts apply section 137 when balancing the probative value of relevant evidence against fairness concerns in criminal proceedings. The decision illustrates that while late disclosure, short notice, and the hearsay nature of evidence create legitimate prejudice concerns, these factors alone do not automatically exclude evidence if the probative value is substantial and the defendant has realistic opportunities to investigate and challenge reliability.
The ruling also confirms that in criminal trials where a defendant’s state of mind or intent is in issue—particularly in self-defense cases—evidence bearing on whether the defendant faced a genuine grievance or perceived threat from the victim can be highly probative despite its hearsay nature and the timing of its disclosure. The decision reinforces that procedural fairness includes not just excluding prejudicial evidence but ensuring the accused has meaningful opportunity to test and contest it.