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Supreme Court 15 April 1999

Regina v L Cassar; Regina v E Sleiman; Regina v H Kalache (Judgment No 12)

[1999] NSWSC 352

Homicide
CRIMINAL LAW EVIDENCE

Citation: Regina v L Cassar; Regina v E Sleiman; Regina v H Kalache (Judgment No 12) [1999] NSWSC 352
Court: Supreme Court of New South Wales, Criminal Division
Date: 15 April 1999
Judge(s): Sperling J

Background

Three accused faced criminal proceedings in connection with the stabbing death of the deceased. The Crown's primary eyewitness, Mr Stacey, gave evidence that he had observed two of the accused attack the deceased and had heard the deceased identify one of them immediately afterwards. In cross-examination, the defence established that Mr Stacey had said nothing of the kind when first interviewed by police shortly after the stabbing, and had only provided his detailed account some seven months later.

Mr Stacey's explanation for the delay was that he had been subjected to threats and harassment related to the murder, which placed him and his family in fear. The defence challenged whether that fear was genuine or sufficient to account for the inconsistency in his accounts.

The evidentiary issue before Sperling J arose from the Crown's application to tender a statement by Sergeant Buckley, a police officer who was also a fellow member of Mr Stacey's golf club. The statement recorded conversations between Sgt Buckley and Mr Stacey in early December 1997, just weeks before Mr Stacey gave his full account to the investigating detectives.

  • Whether Mr Stacey's statement to Sgt Buckley that he had witnessed the murder from the beer garden was admissible as a prior consistent statement under s 108(3) of the Evidence Act 1995 (NSW), so as to rebut the attack on his credit.
  • Whether the circumstances in which Mr Stacey eventually came forward, including his expressed fear and his approach to Sgt Buckley for guidance, were admissible in re-examination under s 108(1) to explain the seven-month delay in disclosure.
  • Whether either category of evidence should be excluded under s 135(b) on the basis that its probative value was substantially outweighed by the danger of misleading or confusing the jury.

Decision

First category: Prior consistent statement. Sperling J held that Mr Stacey's statement to Sgt Buckley that he had witnessed the murder was admissible as a prior consistent statement under s 108(3) of the Evidence Act. The credibility rule in s 102 ordinarily excludes such evidence, but the exception in s 108(3) was engaged on two independent grounds. First, a prior inconsistent statement by Mr Stacey had already been admitted into evidence (satisfying s 108(3)(a)). Second, the cross-examination implied that Mr Stacey's account had been fabricated or reconstructed (satisfying s 108(3)(b)). His Honour granted leave under that provision for the evidence to be adduced.

Second category: Explanation for delay. The evidence of Mr Stacey's fear, his approach to Sgt Buckley, and the advice and assurance Sgt Buckley provided was held admissible in re-examination under s 108(1), which creates an exception to the credibility rule for evidence adduced in re-examination. Sperling J confirmed that evidence explaining adverse matters raised in cross-examination is admissible in re-examination whether it comes from the original witness or from another source, citing his own earlier decision in McLean v The Commonwealth of Australia.

Section 135(b) discretion. Counsel for one of the accused argued that the evidence should be excluded because it was misleading or merely self-corroborating. Sperling J rejected that submission. He emphasised that Mr Stacey was, as the court understood it, the Crown's only eyewitness and that his credit was therefore of central importance. The court was satisfied that a properly directed jury would not be misled about the significance of the evidence, and declined to exercise the s 135(b) exclusionary discretion.

Orders Made

The evidence contained in Sgt Buckley's statement was ruled admissible and allowed to be adduced.

Key Takeaways

  • Under s 108(3) of the Evidence Act 1995 (NSW), the credibility rule does not bar a prior consistent statement where either a prior inconsistent statement has been admitted (s 108(3)(a)) or fabrication has been suggested (s 108(3)(b)), provided the court grants leave. Both limbs can apply simultaneously on the same facts.
  • Evidence in re-examination explaining adverse material drawn out in cross-examination is admissible under s 108(1) as an exception to the credibility rule, even where it goes only to the credit of the witness rather than to a fact in issue.
  • Such explanatory re-examination evidence may be elicited from a witness other than the original witness, not only from the witness whose credit is in question.
  • The s 135(b) discretion to exclude evidence whose probative value is substantially outweighed by a danger of misleading or confusing the jury will not readily be exercised where the evidence bears directly on the credit of the prosecution's only eyewitness.
  • A witness's state of fear and the circumstances in which that fear was overcome, leading to belated disclosure, are capable of explaining the delay and rehabilitating the witness's credit, rather than simply amounting to impermissible self-corroboration.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 102, 108, 135, 192

Cases
- BD (1997) 94 A Crim R 131
- DJT [1999] NSWCCA 22
- Foley (CCA NSW, 5 June 1996, unreported)
- Gillard [1999] NSWCCA 21
- Graham (1998) 72 ALJR 1491
- Hall (CCA NSW, 28 February 1997, unreported)
- McLean v The Commonwealth of Australia (Sperling J, 27 June 1996, unreported)