Citation: R v Lane [2014] NSWSC 1430
Court: Supreme Court of New South Wales
Date: 15 October 2014
Judge(s): Campbell J
Background
The accused stood trial for the murder of a man following an altercation in Casino around midnight on 15 to 16 September 2012. The Crown alleged the accused delivered a deliberate punch intended to cause grievous bodily harm, knocking the deceased to the pavement and causing a fatal traumatic brain injury. Self-defence was a live issue at trial.
The accused's son had been present at the relevant location on the night in question, though not directly involved in the altercation. He made two statements to police, in September 2012 and August 2013. The Crown did not wish to call him as a witness but accepted an obligation to do so given the relevance of his evidence and a request from the accused.
The Crown applied in advance, under section 192A of the Evidence Act 1995 (NSW), for a ruling on whether it could question the son under section 38 as an unfavourable witness, and on what procedure should be followed.
Legal Issues
- Whether the son's anticipated evidence was "unfavourable" to the Crown within the meaning of section 38 of the Evidence Act 1995 (NSW)
- What procedural steps should govern the eliciting of the son's evidence at trial, given the Crown's obligation to call him and the likely need to cross-examine him on parts of that evidence
Decision
Issue 1: Whether the evidence was "unfavourable" to the Crown
Campbell J confirmed that "unfavourable" under section 38 means no more than "not favourable," an undemanding test that abrogated the stricter common law hostile witness rules. Critically, the section can be invoked even where unfavourable evidence is anticipated in advance, unlike the common law position which required an element of surprise.
The Crown identified three aspects of the son's expected evidence as unfavourable: first, that the deceased appeared to have initiated the verbal exchange; second, that the deceased and the accused were observed trading punches and kicks; and third, that the accused was observed immediately afterwards with significant facial injuries, including a closed eye and broken teeth. Campbell J found that the first two matters did not satisfy even the undemanding test, because the Crown case did not depend on who started the altercation or the nature of the physical exchange. The Crown's case was that the accused ended the encounter with a deliberate, fatal punch regardless of how it began.
Issue 2: Whether point three independently satisfied the test
The third matter, the description of serious injuries to the accused immediately after the encounter, was a different matter entirely. The Crown's case included evidence from CCTV footage said to show the accused was uninjured during the exchange, and the Crown contended no act of self-defence explained the deceased's death. The son's description of significant injuries to his father was directly inconsistent with those propositions. Campbell J was satisfied that this evidence was "not favourable" to the Crown and granted leave accordingly.
Issue 3: Procedure for eliciting the son's evidence
Campbell J adopted the procedure endorsed in R v Milat and followed in subsequent Court of Criminal Appeal decisions. The Crown would call the son, identify him, and immediately hand him to defence counsel for cross-examination. The Crown would then be permitted to examine him, including by cross-examination, on the unfavourable injury evidence. The accused would then have a further opportunity to cross-examine, followed by a final Crown re-examination. Campbell J reserved liberty for the Crown to apply to extend the scope of cross-examination during the evidence. The judge also indicated he would give the jury a brief, neutral direction that the procedural sequence would differ from what they had seen with other witnesses, without suggesting any adverse inference.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under section 38 of the Evidence Act 1995 (NSW), "unfavourable" means no more than "not favourable," a deliberately undemanding statutory test that replaced the stricter common law hostile witness requirement.
- A section 38 application can be made and granted in advance under section 192A, even where unfavourable evidence is anticipated rather than surprising, reversing the common law position on that point.
- Evidence that does not align with a particular prosecution case theory is not automatically "unfavourable" within section 38; the question is whether it is actually inconsistent with or adverse to the Crown case as put.
- Where a witness's expected evidence is partly favourable and partly unfavourable, leave under section 38 extends only to the unfavourable portions, with liberty to apply to expand scope as the evidence unfolds.
- The procedural sequence confirmed in R v Milat and subsequent Court of Criminal Appeal decisions calls for: defence cross-examination first, followed by Crown cross-examination on the unfavourable matters, further defence cross-examination, and finally Crown re-examination.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 38, 192A
Cases
- Doyle v R [2014] NSWCCA 4
- Kanaan v The Queen [2006] NSWCCA 169
- R v Kingswell (Unreported New South Wales Court of Criminal Appeal, 2 September 1998)
- R v Milat (Unreported, Supreme Court of New South Wale, Hunt CJ at CL, 23 April 1996);