An ERISP of a co-accused who refuses to give evidence is admissible under s 65(2)(d) of the Evidence Act 1995 (NSW) where the representations tend to implicate the maker in a joint criminal enterprise, even though the accused has had no opportunity to cross-examine the maker. The inability to cross-examine is relevant to the s 137 balancing exercise but is not of itself decisive, and may be addressed by appropriate jury directions. Representations need not each independently qualify as against interest when considered in isolation; they may be assessed in context with surrounding answers that together constitute an admission against interest. Mixed motives of the maker do not deprive incriminatory answers of their character as statements against interest.
The full text is available to signed-in members, including the 91 later cases that cite this judgment.
20 of the 91 citing cases carry a classified treatment. How each court treated it is available to signed-in members.