Citation: R v Colless (No 2) [2016] NSWSC 932
Court: Supreme Court of New South Wales
Date: 22 June 2016
Judge(s): Button J
Background
The accused faced a serious criminal trial in which an alleged campaign of harassment and the accused's responses to it were central issues. A Crown witness gave evidence on the voir dire (a hearing outside the jury's presence to determine admissibility) in which he stated that, after an incident at a KFC, he heard the accused on the phone using the phrase "sort it out."
Less than an hour later, when that same witness was asked about this in front of the jury, he said he could not recall any particular words that were said. This created a direct inconsistency between his evidence on the voir dire and his evidence before the jury.
The Crown applied for leave to cross-examine its own witness about the inconsistency, relying on section 38 of the Evidence Act 1995 (NSW). Defence counsel accepted that the circumstances fell within at least one of the operative "legs" of section 38, but opposed the grant of leave on the basis of the discretionary factors under section 192 of the same Act.
Legal Issues
- Whether leave should be granted under section 38 of the Evidence Act 1995 (NSW) for the Crown to cross-examine its own witness on a prior inconsistent statement made during the voir dire.
- Whether the discretionary factors in section 192(2) of the Evidence Act 1995 (NSW), taken together, favoured or weighed against granting leave.
- Whether the potential prejudice to the accused arising from references to prohibited drug use by the witness warranted refusal of leave under section 137 of the Evidence Act 1995 (NSW).
Decision
Button J granted leave for the Crown to cross-examine the witness. The court worked through each of the discretionary factors in section 192(2), finding that the majority pointed in favour of granting leave rather than against it.
On the first factor (section 192(2)(a), the time required), the court noted the relevant questions could be put in a matter of seconds. On the second factor (section 192(2)(b), any unfairness to the accused), the court observed that the possibility of this evidence had been apparent for some time and that its exploration on the voir dire meant there was no unfairness in allowing it before the jury.
The court considered the evidence important to central issues in the trial, including voluntariness, the requisite intention for murder, and self-defence (section 192(2)(c)). Reflecting on the gravity of the proceedings (section 192(2)(d)), Button J reasoned that a more complete exploration of the evidence was appropriate rather than a more restricted one. No adjournment or alternative order was considered a practical alternative (section 192(2)(e)).
The court acknowledged some force in the defence argument that repeated references to the witness's use of a prohibited drug could prejudice the accused. However, Button J held that this possibility did not outweigh the considerations favouring the grant of leave, and the potential prejudice under section 137 was not sufficient to prevent the application succeeding.
Orders Made
• Permit the Crown prosecutor to cross-examine the witness about the seeming contradiction between what he said in the witness box and what he said on the voir dire
Key Takeaways
- Under section 38 of the Evidence Act 1995 (NSW), a party may seek leave to cross-examine its own witness where that witness gives evidence inconsistent with a prior statement, including a statement made on the voir dire earlier in the same proceeding.
- The discretionary factors in section 192(2) must each be considered individually before leave is granted or refused; the Supreme Court worked through all five factors in sequence, finding the balance clearly favoured the Crown.
- Where evidence relates to significant contested issues in a serious criminal trial, such as intention, voluntariness, and self-defence, its importance weighs in favour of fuller exploration rather than restriction (section 192(2)(c) and (d)).
- Potential prejudice from incidental references to a witness's drug use does not automatically defeat a Crown application for leave under section 38, particularly where the other discretionary factors point firmly toward grant.
- A prior inconsistent statement made on the voir dire can ground a section 38 application when the witness subsequently gives different evidence before the jury in the same trial.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 38, 137, 192, 192(2)(a), 192(2)(b), 192(2)(c), 192(2)(d), 192(2)(e)
Cases cited: No cases were cited in the judgment.