O'Driscoll v WA

[2011] WASCA 175

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Extension of time
4. › Whether miscarriage of justice would arise from refusal
5. › Whether exceptional circumstances exist
1. Criminal Law
2. › Evidence
3. › Hearsay
4. › Relationship evidence
5. › Out-of-court statements by deceased
6. › Whether statements admissible as evidence of state of mind and relationship rather than truth of facts asserted
7. › Evidence Act 1906 (WA), s 31A
1. Criminal Law
2. › Evidence
3. › Relationship evidence
4. › Admissibility
5. › Balancing probative value against prejudicial effect
6. › Whether prejudice goes to admissibility or discretion to exclude
1. Criminal Law
2. › Trial
3. › Directions to jury
4. › Alternative causes of death
5. › Whether trial judge adequately left exculpatory cause of death to jury

Quick Take

Out-of-court statements by a deceased person about the nature of their relationship with the accused are admissible as relationship evidence (not hearsay) where led to prove the deceased's state of mind and the nature of the relationship, not the truth of the facts asserted. The probative value of such evidence spanning the entire duration of a relatively short relationship is heightened rather than reduced. The court left open the question whether the prejudicial effect of such evidence goes to admissibility or to the discretion to exclude.