evidence taken on a Basha inquiry sought to be subsequently admitted into evidence in the trial
Quick Take
1Evidence taken on a Basha inquiry in a judge-alone trial may stand as evidence in the trial where the witness is relevant and the Crown is obliged to call available witnesses who were in a position to give material evidence, even where the witness's oral testimony does not advance the Crown case.
2A colloquial evaluative statement by a lay witness about the quality of a blow ('got him a gooden') is not an admissible lay opinion under s 78 of the Evidence Act 1995 (NSW) and, alternatively, is excludable under s 137 as inflammatory language whose limited probative value is outweighed by the danger of unfair prejudice, even in a judge-alone trial.
3In a self-defence case, the Crown may legitimately rely on the absence from the body of evidence of any account supporting self-defence, but the onus to negative self-defence beyond reasonable doubt never shifts from the Crown.
