Citation: R v Abdallah (No. 4) [2014] NSWSC 286
Court: Supreme Court of New South Wales
Date: 3 March 2014
Judge: Campbell J
Background
The accused stood trial for murder arising from a shooting on 4 January 2012. A key eyewitness had given multiple accounts of the events over time, including a call to emergency services immediately after the shooting, a notebook account with attending police, a formal police statement on the day, a walk-through of the crime scene approximately one month later, and evidence at committal proceedings in November 2012.
During cross-examination, senior counsel for the accused put to the eyewitness that his evidence on several significant points was not fabricated but had been innocently reconstructed, given the traumatic and unusual nature of what he had witnessed. This reconstruction argument was supported by a series of inconsistencies across the witness's various accounts.
The Crown then sought leave to re-examine the witness on prior consistent statements under section 108 of the Evidence Act 1995 (NSW). Three topics were identified as relevant: whether the accused retrieved the gun from the passenger side of his vehicle before shooting; whether the first victim was running away when initially shot; and whether there were two distinct incidents of shooting of the deceased.
Legal Issues
- Whether the credibility rule under the Evidence Act 1995 (NSW) was displaced by the suggestion of reconstruction during cross-examination, so as to engage section 108(3)(b)
- Whether the court should grant leave to adduce prior consistent statements in re-examination, having regard to the factors in section 192(2) of the Evidence Act
- Which specific prior statements or materials should be permitted in re-examination, and which should be excluded
Decision
Issue 1: Was reconstruction suggested so as to engage section 108(3)(b)?
Campbell J was satisfied that the cross-examination had clearly put to the witness that his evidence on at least two of the three topics had been reconstructed, even if innocently, as a result of the psychological effect of witnessing a traumatic event. No suggestion of deliberate fabrication or third-party suggestion was made, but that was not required. The implication of reconstruction was sufficient to engage section 108(3)(b), and the precondition for the grant of leave was therefore established.
Issue 2: Should leave be granted, and on what terms?
The court applied the section 192(2) factors, including the effect on trial length, fairness to all parties, and the importance of the evidence. Given that the trial was a murder proceeding in its third week, no adjournment or case management measure could practically facilitate the evidence in another way, and those factors weighed in favour of granting leave. The importance of the three topics was not in dispute: each bore directly on whether the accused shot with intent to kill or acted in self-defence, the latter having been raised because the fight preceding the shooting was initiated by an associate of the deceased.
Issue 3: Which materials were permitted in re-examination?
Campbell J drew a clear distinction between the contemporaneous statements of 4 January 2012 and the later materials. Re-examination was permitted by reference to the two statements made on the day of the shooting, as those statements were made when events were fresh in the witness's mind and could therefore carry significant weight with the jury. Re-examination was refused in relation to the committal evidence, which post-dated the unsatisfactory walk-through and would unduly lengthen proceedings while being unfair to the accused. Further excerpts from the walk-through itself were also refused, as that process was common ground to have been unsatisfactory and introducing extensive portions of it as an exhibit risked giving it unwarranted apparent weight.
Orders Made
- Leave granted to the Crown to re-examine the eyewitness on each of the three identified topics, limited to the two statements of 4 January 2012.
Key Takeaways
- Under section 108(3)(b) of the Evidence Act 1995 (NSW), a suggestion of innocent reconstruction during cross-examination is sufficient to displace the credibility rule and open the door to prior consistent statements in re-examination, without any need for an allegation of deliberate fabrication.
- When considering leave under section 108(3)(b), the court must apply the section 192(2) factors, including the impact on trial length, fairness to parties, and the importance of the evidence in question.
- A prior consistent statement's temporal proximity to the events it describes is a relevant consideration: the Supreme Court here gave weight to the fact that the day-of-shooting statements were made while events were fresh, distinguishing them from later accounts contaminated by an unsatisfactory investigative process.
- Admission of prior consistent statements in re-examination is not all-or-nothing. The court may permit re-examination on certain materials while refusing it in relation to others, calibrating the grant of leave to minimise unfairness and unnecessary lengthening of the trial.
- Where a walk-through process is acknowledged by both parties to have been conducted unsatisfactorily, admitting extensive portions of it as an exhibit risks giving it disproportionate apparent weight, and this consideration can properly inform a decision to refuse leave in relation to that material.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) s 108
Cases
- Not stated