Citation: R v Rogerson; R v McNamara (No 25) [2016] NSWSC 110
Court: Supreme Court of New South Wales
Date: 22 February 2016
Judge: Bellew J
Background
This decision arose as a discrete evidentiary ruling during the criminal trial of two accused, Rogerson and McNamara. The trial involved evidence from a witness, Justin McLannen, who had earlier been the subject of a Crown application for leave to revive his memory from a police statement. That application had been refused (see R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105).
The witness's police statement included an account of a conversation with the accused McNamara, in which McNamara allegedly identified himself as a former police officer from Kings Cross with significant life experience. Counsel for Rogerson sought to elicit that same portion of the statement through cross-examination, hoping it might support Rogerson's position and form the basis of closing submissions to the jury.
The question put to the witness was: "Did he tell you he was an ex-cop from Kings Cross?" Counsel for McNamara did not object to the subject matter being explored but objected to the question being asked in a leading form. That objection prompted the ruling.
Legal Issues
- Whether the proposed question constituted a leading question within the meaning of s 42 of the Evidence Act 1995 (NSW)
- Whether the court should permit that leading question in cross-examination, having regard to the mandatory considerations in s 42(2)
- In particular, whether the witness had an interest consistent with the cross-examiner's interests (s 42(2)(b)), or was sympathetic to the cross-examining party (s 42(2)(c))
- Whether the facts would be better ascertained without the use of a leading question (s 42(3))
Decision
Bellew J accepted without qualification that the question as framed was a leading question. The analysis therefore turned entirely on s 42 of the Evidence Act 1995 (NSW), which permits leading questions in cross-examination unless the court disallows them. Section 42(2) sets out a non-exhaustive list of factors the court must consider before doing so.
On the question of whether the witness had a consistent interest with the cross-examiner under s 42(2)(b), His Honour found that it could not be said the witness shared interests with Rogerson's counsel or his client. The more difficult question was whether the witness was "sympathetic" to Rogerson within the meaning of s 42(2)(c). The Crown argued that sympathy referred to a particular state of mind. His Honour declined to read the provision so narrowly, finding that the witness could be described as sympathetic to Rogerson's interests because his account asserted things capable of supporting Rogerson's position at trial.
Despite finding some sympathy in that broader sense, His Honour identified two countervailing considerations. First, the court had observed over more than a day of evidence that the witness showed a propensity to agree with affirmatively framed propositions regardless of their accuracy, making a leading question unreliable as a means of ascertaining the facts. Second, the Crown had already been refused leave to have the witness revive his memory about the same evidence; allowing defence counsel to elicit that same material by a leading question would be inconsistent with that earlier ruling.
Applying s 42(3), His Honour was satisfied the facts would be better ascertained without a leading question and disallowed it. Counsel for Rogerson was, however, expressly permitted to pursue the same subject matter through non-leading questions.
Orders Made
No formal orders were made in this decision. The ruling disallowed the specific leading question but left open the possibility for counsel to re-examine the issue through non-leading questions.
Key Takeaways
- Under s 42 of the Evidence Act 1995 (NSW), leading questions are ordinarily permitted in cross-examination, but the court retains a discretion to disallow them having regard to the non-exhaustive factors in s 42(2).
- The concept of a witness being "sympathetic" to a cross-examining party under s 42(2)(c) is not confined to a specific state of mind; a witness who asserts things capable of supporting the cross-examiner's case may be regarded as sympathetic in the relevant sense.
- Bellew J found that a witness's observable tendency to agree with affirmatively stated propositions weighs against permitting a leading question, because it undermines the reliability of any answer obtained.
- Where the Crown has already been refused leave to revive a witness's memory on the same topic, that refusal is a relevant factor when the defence subsequently seeks to elicit identical evidence through a leading question in cross-examination.
- Disallowing a leading question on grounds of form does not prevent the questioner from pursuing the same subject matter through a properly framed non-leading question.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 42 (leading questions in cross-examination)
Cases:
- R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105 (earlier ruling refusing Crown leave to revive witness memory)