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Supreme Court 9 November 2015

R v Fletcher (No 2)

[2015] NSWSC 1692

Homicide
CRIMINAL LAW PROCEDURE APPLICATION TO CROSS WHETHER THE CROSS WHETHER THE CROSS

Citation: R v Fletcher (No 2) [2015] NSWSC 1692
Court: Supreme Court of New South Wales
Date: 9 November 2015
Judge(s): Button J

Background

The accused stood trial in the Supreme Court for murder, the most serious offence known to law. The Crown sought leave to cross-examine a witness referred to by the pseudonym Andrea Parker, a young person whose identity is protected under the Children (Criminal Proceedings) Act 1987 (NSW).

The Crown alleged that Parker had previously made a statement to a third party, Kay Lorraine Henson, shortly after the alleged offence occurred. That prior statement, recorded at paragraph 20 of Henson's statement dated 3 September 2014, had been tendered on the voir dire (a preliminary hearing conducted in the absence of the jury to determine admissibility) as Crown voir dire exhibit E.

The application was made in the context of the Crown's case that the act causing death occurred during a visit by the accused and Parker to the deceased's premises.

  • Whether the Crown should be granted leave to cross-examine Parker, its own witness, about a prior inconsistent statement under s 38(1)(c) of the Evidence Act 1995 (NSW)
  • Whether cross-examination would unduly add to the length of the proceedings under s 192(2)(a)
  • Whether cross-examination would occasion unfairness to the accused or the witness under s 192(2)(b)
  • Whether the evidence was sufficiently important to justify leave, having regard to the mandatory factors in ss 38(6) and 192(2) of the Evidence Act

Decision

Button J granted leave to the Crown to cross-examine Parker about the prior inconsistent statement allegedly made to Henson. His Honour worked through the mandatory considerations in ss 38(6) and 192 of the Evidence Act systematically.

On procedural fairness, the court noted that defence counsel had been on notice for several weeks that the application was coming, satisfying s 38(6)(a). It was also apparent that defence counsel intended to explore the same topic in their own cross-examination, addressing s 38(6)(b).

Regarding trial length and fairness (s 192(2)(a) and (b)), the court accepted there was some potential for the questioning to lengthen proceedings, but found this would not be undue. The court was also satisfied that permitting the cross-examination occasioned no unfairness to either the accused or the witness.

The court placed weight on the importance of the evidence (s 192(2)(c)), the gravity of the proceedings as a murder trial (s 192(2)(d)), and the absence of any alternative logistical process that could substitute for cross-examination (s 192(2)(e)). Defence counsel did not vigorously oppose the specific application, though reserved rights in relation to other anticipated applications. Button J adopted a process of dealing with each s 38 application in sequence, noting that answers given during this cross-examination could inform how subsequent applications were determined.

Orders Made

  • Leave granted to the Crown to cross-examine Andrea Parker (pseudonym) about whether she made a prior inconsistent statement to Kay Henson, as described in paragraph 20 of Crown voir dire exhibit E.

Key Takeaways

  • Under s 38(1)(c) of the Evidence Act 1995 (NSW), the Crown may seek leave to cross-examine its own witness about a prior inconsistent statement, subject to the court working through the mandatory considerations in ss 38(6) and 192.
  • Advance notice to the opposing party of a s 38 application, and that party's own intention to examine the same topic, are relevant factors under s 38(6)(a) and (b) respectively.
  • The gravity of the proceedings, the importance of the evidence to the Crown's core narrative, and the absence of alternative procedural mechanisms all weighed in favour of granting leave.
  • Where multiple s 38 applications are anticipated, a sequential approach, dealing with each application in turn, was considered appropriate because earlier answers may inform later rulings.
  • The Supreme Court applied the s 192(2) factors as a structured checklist, treating the absence of undue delay, the absence of unfairness, and the centrality of the evidence as cumulative reasons supporting the grant of leave.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 38, 38(1)(c), 38(6), 38(6)(a), 38(6)(b), 192, 192(2)(a), 192(2)(b), 192(2)(c), 192(2)(d), 192(2)(e)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases cited: No cases were cited in the judgment.