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Supreme Court 18 August 2011

R v Perish; R v Lawton; R v Perish

[2011] NSWSC 1112

HomicidePublic order & justice offences
CRIMINAL LAW UNFAVOURABLE WITNESS WHETHER LEAVE GRANTED TO CROWN TO CROSS EXAMINE SHOULD BE EXTENDED CONSIDERATIONS OF FAIRNESS.

Citation: R v Perish; R v Lawton; R v Perish [2011] NSWSC 1112
Court: Supreme Court of New South Wales
Date: 18 August 2011
Judge(s): Price J

Background

The proceedings involved charges of murder and conspiracy to murder connected to the death of Terry Falconer. The Crown called a witness (referred to as Witness E) who, in evidence-in-chief, claimed to have no recollection of meetings at a McMahon's Point cafe and the St George Rowing Club. Those meetings had been described in detail by another Crown witness (Witness B), who alleged that admissions and intimidating conduct occurred in Witness E's presence.

The Crown had already been granted leave under s 38(1) of the Evidence Act 1995 to cross-examine Witness E as an unfavourable witness. The Crown then sought to extend that leave in two respects: to cross-examine Witness E on a prior inconsistent statement he made during committal proceedings, and to cross-examine him on Witness B's evidence of those meetings.

The defence (for the accused Anthony Perish) did not oppose the limited extension relating to the prior inconsistent statement, but opposed the broader extension that would involve putting Witness B's evidence to Witness E.

  • Whether the existing grant of leave under s 38(1) of the Evidence Act 1995 should be extended to permit Crown cross-examination of Witness E on the content of Witness B's evidence of the meetings.
  • Whether the probative value of that proposed cross-examination was outweighed by the danger of unfair prejudice to the defendant under s 137 of the Evidence Act 1995.
  • Whether leave should separately be granted to cross-examine Witness E on his prior inconsistent statement from the committal proceedings.

Decision

Price J resolved the extension application primarily by applying s 137 of the Evidence Act 1995, which requires a court in criminal proceedings to refuse prosecution evidence where its probative value is outweighed by the danger of unfair prejudice to the defendant. The central question was not the probative value of Witness B's evidence itself, but rather the probative value of whatever answers Witness E would give when that evidence was put to him in cross-examination.

Because Witness E had no recollection of the relevant meetings (and had not said otherwise beyond a single passage from the committal proceedings), the extent to which his cross-examination answers could rationally affect the jury's assessment of the facts in issue was, at best, modest. The proposed cross-examination therefore carried limited probative value.

Against that, Price J identified a real and significant risk of unfair prejudice: putting Witness B's evidence to Witness E in cross-examination could cause the jury to treat that process as confirmation of Witness B's reliability, effectively elevating Witness B's evidence through a mechanism that bypassed proper assessment. His Honour concluded that a jury direction would not adequately dispel that risk. Accordingly, leave to cross-examine Witness E on Witness B's previous representations was refused under s 137.

However, leave was granted for the narrower application: cross-examining Witness E on his prior inconsistent statement made during committal proceedings, where he had acknowledged that a reference to the Falconer abduction was made in a conversation with Witness B at McMahon's Point. The defence did not oppose this, and the court was satisfied it met the s 192(2) criteria, including that the topic had some importance to the proceedings, there was no unfairness to the defendant or the witness, and the matter related to serious charges of murder and conspiracy to murder.

Orders Made

  • Leave refused for the Crown to cross-examine Witness E on the previous representations made by Witness B (s 137, Evidence Act 1995).
  • Leave granted for the Crown to cross-examine Witness E on his identified prior inconsistent statement made during the committal proceedings.
  • The court noted its intention to direct the jury about the grant of leave under s 38 of the Evidence Act 1995.

Key Takeaways

  • Under s 137 of the Evidence Act 1995, the evidence whose probative value must be assessed is the evidence actually to be adduced, not the underlying representations of another witness that form its subject matter.
  • Where an unfavourable witness claims no memory of events, the probative value of cross-examining that witness on another witness's account of those same events may be limited, particularly where the prior inconsistent material is confined to a single identified passage.
  • A real risk that jury cross-examination will cause the jury to misuse the material and elevate the reliability of another witness's evidence can constitute "unfair prejudice" under s 137, and such a risk need not be dispelled by a direction alone.
  • The Court confirmed, applying R v Teasdale, that a Crown purpose of laying groundwork for criticism of a witness in closing address does not, of itself, overcome a s 137 objection where the weighing exercise still favours exclusion.
  • Leave under s 38 can be granted in partial or graduated terms: the court here permitted cross-examination on a prior inconsistent statement while simultaneously refusing the broader extension sought.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW): s 38(1)(a), s 38(1)(b), s 44, s 44(2)(a), s 137, s 192(2)

Cases:
- R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345