The State of Western Australia v Reddington [No 4] is a separate ruling on an evidentiary question arising from a trial in February 2026 for a murder committed in 1986.
The State sought to tender a Family Court affidavit sworn by the victim nine months before her disappearance. The proceedings in which the affidavit was prepared had been adjourned sine die (indefinitely), and the accused filed no affidavit in response.
The Court (McGrath J) held the affidavit was a statement by a qualified person under s 79C(1)(a) of the Evidence Act 1906 (WA) and admitted it in evidence. His Honour, applying Steven Moore (a pseudonym) v The King [2024] HCA 30 (Moore v The King), a decision under Victorian uniform evidence legislation, held that the inability to cross-examine a deceased declarant does not, without more, warrant exclusion of evidence admitted under a hearsay exception. Any remaining prejudice was remedied through redactions and a jury direction.
The Evidence Act 2025 (WA) received Royal Assent on 25 September 2025 and will replace s 79C with the uniform evidence law framework under which Moore v The King was decided, when its substantive provisions come into operation by proclamation.
Facts
The accused was convicted of the wilful murder of his wife on 18 March 1986, following a four-week trial in February 2026: at [1]. The State sought to tender an affidavit sworn by the deceased less than a year before her disappearance in support of Family Court proceedings concerning guardianship, custody, maintenance, and property settlement: at [3].
Those proceedings were adjourned sine die after a single mention: at [3]. The accused filed no affidavit in response: at [37]. The affidavit was prepared by a legal practitioner on the wife’s instructions: at [33]. It set out complaints concerning the marriage, including allegations of financial control: at [4], [41]. The accused objected to its admission on the grounds that it was inadmissible hearsay, was tendered for an inadmissible purpose, invited propensity reasoning, and was unfairly prejudicial within the meaning of s 79C(6): at [7]. The ruling was made during the trial, with reasons published after the accused’s conviction: at [2], [12].
Issues
Two issues arose for determination: (1) whether the affidavit was a statement by a qualified person within the meaning of s 79C(1)(a) (yes); and (2) whether the discretion to exclude under s 79C(6) should be exercised (no).
Reasons
1. Statement by a qualified person under s 79C(1)(a)
Section 79B defines a “qualified person” as a person who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with by the statement at the time it was made: at [16].
McGrath J held that it was a reasonable inference from the contents of the affidavit that the accused’s wife had deposed to matters within her personal knowledge: at [19]. Being deceased, she satisfied the exception in s 79C(2)(a) to the requirement that the maker be called as a witness. Had she been alive, she could have given direct oral evidence of the matters contained in the affidavit: at [20]–[21]. His Honour therefore held that the affidavit was admissible under s 79C(1)(a): at [22].
2. Exercise of the s 79C(6) discretion
The Court of Appeal in Greenaway v The State of Western Australia [2022] WASCA 166 articulated a three-step framework for the exercise of the discretion under s 79C(6), which is a discretion to exclude rather than admit evidence: at [326].
The Court identified three questions: (1) the probative value of the evidence; (2) whether its admission may create undue prejudice; and (3) whether any such prejudice outweighs the probative value. Once prima facie admissibility is established, the onus lies on the objector to demonstrate that probative value is outweighed by undue prejudice. That assessment is to account for the interests of both parties: McKay v Commissioner of Main Roads [No 2] [2010] WASC 153 at [72]–[78].
On probative value, McGrath J held that the affidavit evidenced ongoing marital difficulties from May 1985 until the victim’s disappearance and demonstrated the accused’s awareness of the likely financial consequences of a marital breakdown: at [28]–[35].
On prejudice, McGrath J held that the inability to cross-examine the maker of a hearsay statement, without more, is insufficient reason to exclude the evidence: at [38]. His Honour relied on Moore v The King, a decision under the Evidence Act 2008 (Vic), whose hearsay provisions are materially equivalent to those of the uniform evidence law. In Moore v The King, the High Court held at [32] that treating the inability to cross-examine as a sufficient basis for exclusion would swallow the hearsay exception. Here, the accused was able to challenge the contents of the affidavit through evidence and submissions: at [40].
McGrath J ordered the redaction of specified paragraphs and directed the jury that the affidavit reflected only one side of adversarial proceedings and could not be used for propensity reasoning: at [42]–[43].
Commentary
The decision has at least four implications.
(1) An affidavit sworn by a deceased person in prior civil proceedings may satisfy s 79C(1)(a) where personal knowledge can reasonably be inferred from the nature and contents of the document. Proof beyond that inference is not required.
(2) The inability to cross-examine a deceased declarant does not, without more, justify exclusion under s 79C(6). Objectors should identify specific issues bearing on the declarant’s honesty or reliability that cross-examination was suited to address. They are also to show that those issues cannot be adequately addressed through evidence and submissions.
(3) The Evidence Act 2025 (WA) received Royal Assent on 25 September 2025. When its substantive provisions come into operation by proclamation, s 79C will be replaced by the uniform evidence law hearsay framework. The comparator provision for criminal proceedings where the maker is unavailable is s 78 of the new Act, which is drawn from s 65 of the Evidence Act 1995 (Cth). Section 78 requires a representation to satisfy specified reliability conditions rather than the “qualified person” test.
Documents prepared for prior adversarial proceedings may therefore face a higher admissibility threshold under s 78 than under s 79C(1)(a). The discretion in s 79C(6) is not reproduced in the new Act. Section 203 of the new Act (equivalent to s 137 of the Evidence Act 1995 (Cth)) instead requires the mandatory exclusion of prosecution evidence where its probative value is outweighed by the danger of unfair prejudice.
(4) Moore v The King was applied by analogy to the s 79C framework because the Victorian legislation under which it was decided reflects the uniform evidence law. Under the Evidence Act 2025 (WA), which adopts that framework, Moore v The King will apply directly in proceedings under s 78. Practitioners working under the new Act should accordingly treat Moore v The King as authoritative.
