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Supreme Court 4 September 2012

R. v. Michael Anthony Ryan (No. 2)

[2012] NSWSC 1034

HomicidePublic order & justice offences
CRIMINAL LAW EVIDENCE EVIDENCE ACT APPLICATION TO CROSS EXAMINE S38 APPLICATION TO EXCLUDE EVIDENCE

Citation: R v Michael Anthony Ryan (No. 2) [2012] NSWSC 1034
Court: Supreme Court of New South Wales
Date: 4 September 2012
Judge: Campbell J

Background

The accused stood trial on an indictment containing two counts, the first being manslaughter by an unlawful and dangerous act. The alleged act occurred in a carpark in Windsor in the early hours of 1 May 2011.

The Crown called Mitchell Moody as an eyewitness to the alleged assault on the deceased. Moody had been ejected from a nearby hotel due to intoxication before joining the accused's group, and was, on the evidence, heavily affected by alcohol at the time of the incident.

The difficulty for the Crown arose because Moody's oral evidence at trial was inconsistent with, and considerably weaker than, an account he had given police in a recorded interview on the same night. In that earlier interview, he provided a definite account of the accused punching the deceased. In the witness box, he was equivocal and uncertain. This triggered a series of evidentiary applications.

  • Whether the Crown should be granted leave to cross-examine its own witness, Moody, under s 38 of the Evidence Act 1995 (NSW), on the basis that his oral evidence was unfavourable and that his police interview constituted a prior inconsistent statement
  • Whether the prior inconsistent statement (the recorded police interview) should be excluded under s 138 of the Evidence Act on the basis that it was obtained improperly or in contravention of an Australian law
  • Whether a s 165 warning to the jury about potentially unreliable evidence was required in respect of Moody's evidence

Decision

Section 38 leave to cross-examine. Campbell J granted the Crown leave to cross-examine Moody on the questions and answers recorded in the police interview. His Honour found that Moody's oral evidence was at least unhelpful to the Crown, even if whether it was strictly "unfavourable" within the meaning of s 38(1)(a) remained debatable. That question was unnecessary to resolve because the police interview plainly constituted a prior inconsistent statement under s 38(1)(c): Moody had given a definite account to police of seeing the accused strike the deceased, which differed materially from his vague courtroom evidence. The representations in that statement were relevant because, if accepted, they could rationally affect the probability of a fact in issue, namely whether the accused assaulted the deceased.

In applying the discretionary factors under ss 38(6) and 192(2), Campbell J was satisfied that leave was appropriate. His Honour acknowledged that the defence would likely challenge the reliability of the police account, including by reference to Moody's intoxication and the circumstances in which the statement was obtained. The leave was confined to specific questions and answers in the interview, with one question and answer excluded, and was subject to directions about how segments of the audio-visual recording could be shown to the jury.

Section 138 application to exclude. The defence sought exclusion of the prior inconsistent statement on the basis that it had been obtained improperly. Campbell J refused the application. His Honour was not satisfied that any relevant impropriety had been established in the circumstances surrounding the obtaining of the police interview.

Section 165 warning. Campbell J also declined to give a warning to the jury under s 165 about the potential unreliability of Moody's evidence. His Honour found that s 165(3) was engaged, which removes the obligation to give such a warning where the matters concern things within the jury's ordinary experience. The jury was well placed from their own life experience to assess the effect of intoxication on a witness's observations and to evaluate the significance of inconsistent statements on the reliability of testimony. These were not matters requiring the accumulated experience of the courts by way of a formal judicial warning.

Orders Made

  1. The defence application to exclude the prior inconsistent statement (Exhibit VD5) under s 138 of the Evidence Act 1995 was refused.
  2. The defence application to re-open and reconsider the earlier s 38 ruling was allowed.
  3. The previous s 38 ruling was confirmed: leave was granted to the Crown to cross-examine Moody on questions and answers 363 to 438 of the police interview (excluding question and answer 419), with cross-examination to be conducted by reference to the audio-visual recording, and the jury to be shown segments including question and answer 37.
  4. The earlier condition requiring a s 165 warning to the jury was revoked.

Key Takeaways

  • Under s 38(1)(c) of the Evidence Act 1995, leave to cross-examine a party's own witness may be granted on the basis of a prior inconsistent statement, even where it remains arguable whether the witness's oral evidence is strictly "unfavourable" within the meaning of s 38(1)(a).
  • The court confirmed the approach in Adam v The Queen (2001) 207 CLR 96: relevance for the purposes of s 38 does not require the court to assess whether the prior inconsistent statement is reliable or likely to be accepted by the jury.
  • A s 165 warning about potentially unreliable evidence is not required where the matters bearing on reliability, such as a witness's intoxication and the effect of inconsistency on credibility, fall within the ordinary experience of jurors and engage s 165(3).
  • Where s 138 exclusion is sought, the party seeking exclusion bears the burden of establishing the impropriety; mere assertion is insufficient.
  • The s 192 discretionary framework applies to all leave applications under the Evidence Act, requiring the court to weigh factors including fairness to witnesses, the importance of the evidence, and the nature of the proceedings.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 32, 38, 55, 138, 165, 192
- Criminal Procedure Act 1986 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)

Cases
- Adam v The Queen (2001) 207 CLR 96
- Klewer v Walton [2003] NSWCA 308
- Hadgkiss v CFMEU [2006] FCA 941
- Ho v Director of Public Prosecutions (Cth) (1998) 102 A Crim R 37
- R v Le [2001] NSWSC 174; (2002) 54 NSWLR 474
- R v Stewart (2001) 52 NSWLR 301
- Papakosmas v The Queen (1999) 196 CLR 297
- Ridgeway v The Queen (1995) 184 CLR 19
- Bunning v Cross (1978) 141 CLR 54
- R v Coulstock (1998) 99 A Crim R 143
- R (Cth) v Petroulias (No. 8) [2007] NSWSC 82; (No. 9) [2007] NSWSC 84
- New South Wales v Hathaway [2010] NSWCA 184
- Robinson v Woolworths Limited (2005) 64 NSWLR (as cited)
- R v Baartman [2000] NSWCCA 298
- R v Ladocki [2004] NSWCCA 336
- Parker v Comptroller-General of Customs (2007) 243 ALR 574
- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
- Briginshaw v Briginshaw (1938) 60 CLR 336