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Supreme Court 5 September 2011

R v Perish; R v Lawton; R v Perish

[2011] NSWSC 1111

Homicide
CRIMINAL LAW UNFAVOURABLE WITNESS APPLICATION BY CROWN TO CROSS EXAMINE CROWN WITNESS ON ERISP MATTERS CONSIDERED IN GRANTING LEAVE.

Citation: R v Perish; R v Lawton; R v Perish [2011] NSWSC 1111
Court: Supreme Court of New South Wales
Date: 5 September 2011
Judge(s): Price J

Background

The three accused faced charges of murder and conspiracy to murder in connection with the abduction and killing of Terrence Falconer. The Crown called a witness identified as Witness E, who had direct knowledge of events leading to the abduction, the kidnapping itself, and what occurred when the deceased was taken to North Turramurra and subsequently to Girvan.

During examination in chief, Witness E gave evidence that the Crown characterised as unfavourable and inconsistent with prior statements he had made, including in a recorded interview with police (an ERISP, or Electronic Record of Interview with a Suspected Person) and during committal proceedings. The Crown applied under s 38 of the Evidence Act 1995 for leave to cross-examine Witness E as though he were an opposing witness.

The court delivered these supplementary reasons to explain the basis on which leave was granted and to address the specific evidentiary disputes raised by counsel for two of the accused, Anthony Perish and Matthew Lawton.

  • Whether leave should be granted under s 38 of the Evidence Act 1995 to permit the Crown to cross-examine its own witness
  • Whether all three triggers under s 38(1) were satisfied: unfavourable evidence, failure to make a genuine attempt to give evidence, and prior inconsistent statements
  • Which portions of the edited ERISP should be admitted, and whether any parts should be excluded under ss 135, 136, or 137 of the Evidence Act
  • How any unfairness to the accused arising from the admission of unsworn ERISP material could be addressed

Decision

Price J was satisfied that all three triggers under s 38(1) were established. Witness E's evidence in chief was unfavourable to the Crown, he had made prior inconsistent statements in both the ERISP and at committal, and his refusal to meet with the Crown, his evident antagonism toward the prosecution, and his contrived responses in court demonstrated that he was not making a genuine attempt to give evidence about matters within his knowledge.

The court acknowledged that Witness E had undergone serious surgery for cancer and had spent approximately a year in isolated custody, both of which he said had affected his memory and psychological wellbeing. However, Price J concluded those factors did not fully explain his conduct and responses, and that the witness was not genuinely attempting to assist the court.

In exercising the discretion to grant leave, the court worked through the factors in s 192(2) of the Evidence Act. The grant of leave was unlikely to unduly lengthen the hearing. The subject matter of the ERISP, covering events from the lead-up to the kidnapping through to the journey to Girvan, was of fundamental importance to the murder and conspiracy charges. The seriousness of those charges weighed in favour of leave. The court acknowledged some unfairness to the accused arising from the unsworn, hearsay nature of ERISP answers and the witness's asserted memory difficulties, but concluded that appropriately framed jury directions could address that unfairness.

On the contested ERISP passages, most objections raised by counsel for Anthony Perish and all objections raised by counsel for Matthew Lawton succeeded and those portions were excluded. Two passages were retained: Witness E's account that Anthony Perish had a gun in his hand, and that Matthew Lawton put on a gun before entering the vehicle. Price J held that the probative value of that firearm evidence was not outweighed by the danger of unfair prejudice under s 137, and that any residual prejudice could be addressed by a limiting direction under s 136 restricting the use the jury could make of the accused's representations.

Orders Made

No orders were made in this decision.

Key Takeaways

  • All three triggers under s 38(1) of the Evidence Act 1995 can be satisfied simultaneously: unfavourable evidence, failure to make a genuine attempt to give evidence, and prior inconsistent statements are not mutually exclusive grounds for leave.
  • A witness's health difficulties and isolation in custody may bear on the leave application, but a court will look beyond those factors where the witness's overall conduct, attitude, and responses indicate a deliberate refusal to engage rather than a genuine inability to recall.
  • Under s 192(2), the seriousness of the charges and the centrality of the evidence to the Crown case are legitimate considerations favouring the grant of leave, weighed against any procedural or substantive unfairness to the accused.
  • Where ERISP material contains unsworn, hearsay representations and the witness has asserted memory difficulties, unfairness to the accused does not automatically preclude admission; the Supreme Court here held that targeted jury directions under ss 136 and 192(2)(e) can sufficiently manage the risk.
  • Evidence of an accused's possession of a firearm during the events in question can carry substantial probative value where it could rationally explain why a witness participated in those events, which in this case included the dismemberment of the deceased's body.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW): ss 38, 59, 60, 135, 136, 137, 192

Cases:
- Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594
- R v GAC (Court of Criminal Appeal, 1 April 1997, unreported)