Citation: R v Rogerson; R v McNamara (No 28) [2016] NSWSC 160
Court: Supreme Court of New South Wales
Date: 1 March 2016
Judge(s): Bellew J
Background
Two accused faced trial for murder. The Crown called a witness, Mr Duff, a long-time acquaintance of one of the accused, to give evidence about events on and around 20 May 2014, the date of the murder. His evidence-in-chief was relatively brief: he recalled a phone call from the accused that morning and gave evidence about a visit to his home that afternoon, though he was uncertain about the precise date of that visit.
During cross-examination, significant inconsistencies emerged. Documents and prior statements suggested that Mr Duff had originally described the visit as occurring on 20 May 2014, the day of the murder, but in evidence he indicated he believed it may have occurred on 15 May 2014. He also claimed he had communicated that belief to the officer-in-charge of the investigation, Detective Phillips, a claim Detective Phillips flatly denied.
Four distinct evidentiary disputes arose from Mr Duff's evidence, each requiring separate rulings from Bellew J.
Legal Issues
- Whether a question put to Mr Duff in cross-examination, which invited him to confirm a prior statement attributed to him that one of the accused had contacted him "in search of an alibi," was objectionable in its form
- Whether the jury should be discharged as a consequence of that question having been put
- Whether Mr Duff could be cross-examined as to his credibility by reference to a criminal history that was more than 20 years old
- Whether the Crown should be granted leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine Mr Duff as an unfavourable witness
Decision
The alibi question: Counsel for one accused objected to a question put by counsel for the other accused, which invited Mr Duff to confirm that he had told a police officer the accused had phoned him "in search of what he believed was an alibi." Bellew J upheld the objection on the basis that the question asked the witness to confirm someone else's belief, which is an impermissible form of question. The question was rejected.
Application to discharge the jury: Following the rejection of the question, an application was made to discharge the jury on the ground that the question itself had created prejudice. Bellew J rejected this application. The question, standing alone, was not so prejudicial that the prejudice could not be cured by an appropriate direction to the jury.
Criminal history cross-examination: An application was made to cross-examine Mr Duff as to his credibility on the basis of his criminal history. Bellew J rejected this application. The criminal history was more than 20 years old and, in his Honour's view, was incapable of rationally affecting an assessment of the witness's credibility. The threshold requirement under the Evidence Act that the evidence have rational bearing on the witness's credit was not satisfied.
Section 38 application: The Crown applied for leave to cross-examine Mr Duff as an unfavourable witness under s 38 of the Act, arising from his evidence that he had told Detective Phillips the visit occurred on 15 May 2014, which Detective Phillips denied. Bellew J granted the application, limited to that specific area identified by the Crown. His Honour noted that the word "unfavourable" in s 38 carries a wide meaning, and that the evidence given by Mr Duff on this point clearly qualified. The related question of whether s 106 (the exception to the credibility rule for rebutting a prior denial) would also apply was deferred, as its relevance would depend on what answers Mr Duff gave under cross-examination.
Orders Made
• The application to cross-examine Mr Duff pursuant to s. 38 of the Act is granted, limited to the area defined by the Crown regarding whether Mr Duff nominated the date of 15 May 2014 to Detective Phillips.
• The application to cross-examine Mr Duff regarding his conviction is refused.
Key Takeaways
- A question in cross-examination that invites a witness to confirm another person's belief is objectionable in form; the ruling here illustrates that the framing of cross-examination questions can itself be a ground for objection distinct from the substantive admissibility of the underlying evidence.
- Upholding an objection to a single question will not automatically warrant discharge of the jury; Bellew J confirmed that prejudice arising from a question alone can generally be addressed by a direction, and the bar for jury discharge on that basis is high.
- Under the Evidence Act 1995 (NSW), a witness's criminal history must be capable of rationally affecting the assessment of their credibility before it can be used for that purpose in cross-examination. A history more than 20 years old was held to fall below that threshold in this case.
- The term "unfavourable" in s 38 of the Evidence Act is to be given a wide meaning, consistent with established authority. Evidence that directly contradicts the account a Crown witness has given in the same proceedings is capable of satisfying the test.
- Where the potential application of s 106 depends on answers yet to be given in ongoing cross-examination, a court may appropriately defer ruling on that provision until the relevant evidence has been elicited.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 38, 106
Cases:
- R v El-Azzi (2004) NSWCCA 455
- R v RPS (unreported, NSWCCA, 13 August 1997)