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Supreme Court 28 March 2003

R v Crowther-Wilkinson; R v Cowie

[2003] NSWSC 226

Homicide
CRIMINAL LAW EVIDENCE APPLICATION BY CROWN TO CROSS EXAMINE WITNESS EVIDENCE "UNFAVOURABLE" EVIDENCE ACT S38(1)(A)

Citation: R v Crowther-Wilkinson; R v Cowie [2003] NSWSC 226
Court: Supreme Court of New South Wales, Common Law Division
Date: 28 March 2003
Judge(s): Hidden J

Background

Two accused were jointly charged with the murder of a man whose body was recovered from the Hawkesbury River in July 2000, wrapped in plastic and secured with chain and D-shackles. The Crown's case depended in part on establishing that the chain found around the body was the same chain purchased at a Brookvale hardware store on 30 May 2000, a transaction attributed to one of the accused.

A salesman at that hardware store was called as a Crown witness. By the time of trial, he had no recollection of the transaction at all, and reading his own police statements had not revived his memory. In his first statement, made about two months after the sale, he had described the customer requesting that the chain be cut into three lengths of five metres. This detail was significant because the chain recovered from the body showed no sign of having been assembled from shorter pieces.

In a second statement made in December 2000, the witness walked back that detail, saying he could not remember how many lengths he cut and suggesting he had confused the transaction with a separate sale to a McDonald's restaurant manager. The Crown sought leave under s 38 of the Evidence Act to cross-examine its own witness in order to elicit this corrective material, along with a physical description of the customer that the Crown contended was inconsistent with the accused's appearance.

  • Whether the evidence given by the witness was "unfavourable" to the Crown within the meaning of s 38(1)(a) of the Evidence Act, justifying leave to cross-examine a party's own witness.
  • Whether leave should be granted where the unfavourable evidence was not a departure from the witness's prior statement, but was in fact entirely consistent with it and elicited directly from it.
  • Whether the discretionary considerations under s 192(2) and the exclusionary provisions in ss 135 and 137 of the Evidence Act precluded admission of the further material.

Decision

Hidden J granted the Crown leave to cross-examine the witness to a limited extent. His Honour found that the evidence given was "unfavourable" to the Crown under s 38(1)(a), applying the established principle from R v Souleyman that "unfavourable" means "not favourable" rather than "adverse." The unqualified assertion that the chain had been cut into three lengths, left uncorrected, would have been misleading to the jury and damaging to the Crown's case.

The case raised a novel problem not squarely addressed in previous authorities. Prior cases on s 38(1)(a) had typically involved witnesses who departed from their proofs or failed to come up to proof in some respect. Here, the unfavourable evidence was entirely consistent with the witness's first police statement and had in fact been drawn out by the Crown's own leading questions based on that statement. Hidden J nonetheless held that this did not prevent the evidence from being characterised as "unfavourable."

His Honour emphasised that the Crown was under a duty to call the witness and present his evidence fully, including material unhelpful to the prosecution. Leaving the evidence as it stood at the point of objection would have presented the jury with an incomplete and distorted picture. The corrective material from the second statement, which qualified the earlier claim about the chain being cut into three lengths, was of obvious significance to the case.

On the discretionary considerations, Hidden J was satisfied that the accused would not be unfairly prejudiced by the cross-examination. Having regard to ss 192(2), 135 and 137 of the Evidence Act, the interests of justice supported the grant of leave and admission of the evidence.

Orders Made

  • Leave granted to the Crown prosecutor to cross-examine Matthew David Weincke pursuant to s 38 of the Evidence Act, to a limited extent.

Key Takeaways

  • Under s 38(1)(a) of the Evidence Act, "unfavourable" means "not favourable" rather than "adverse," a distinction affirmed in R v Souleyman and applied here.
  • A witness's evidence can be "unfavourable" to the party calling that witness even where the evidence is entirely consistent with the witness's prior statement and was elicited directly from it. The present decision extended the concept beyond the more common scenario of a witness departing from their proof.
  • Leaving materially incomplete evidence before a jury, where a corrective qualification exists in a later statement, can itself create a misleading impression sufficient to justify leave under s 38.
  • The Crown's obligation to call a witness does not require it to accept everything that witness says unchallenged. As Heydon JA observed in R v Le, the existence of s 38 reinforces the obligation to test evidence in the interests of justice.
  • The discretionary factors in s 192(2) of the Evidence Act, together with the exclusionary provisions in ss 135 and 137, remain relevant considerations whenever leave under s 38 is sought, and courts must exercise the discretion with care, particularly in criminal proceedings involving prosecution witnesses.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 32, 38, 135, 137, 192(2)

Cases:
- R v Souleyman (1996) 40 NSWLR 712
- R v Kneebone (1999) 47 NSWLR 450
- R v Fowler [2000] NSWCCA 142
- Adam v The Queen (2001) 75 ALJR 1537
- R v Le [2002] NSWCCA 186