Citation: R v Hart (No 3) [2016] NSWSC 957
Court: Supreme Court of New South Wales
Date: 5 July 2016
Judge(s): Campbell J
Background
The accused stood trial for murder following the shooting death of a man named Hargrave on 29 October 2013. A witness, referred to here by her role as a Crown witness, was giving evidence during the Crown's case-in-chief.
During examination-in-chief, the Crown asked the witness whether she had received a phone call from a person named "Mick" regarding the sale of a pen gun on the night of the incident. She denied having that conversation, attributing it instead to the deceased. She also acknowledged that her memory may have been affected by the trauma she experienced that night.
The Crown Prosecutor sought leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine the witness about a prior statement she had made that appeared inconsistent with this denial. Defence senior counsel did not oppose the application.
Legal Issues
- Whether the circumstances engaged the court's discretion to grant leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine a Crown witness who had given unfavourable evidence
- Whether the relevant considerations under s 192 of the Evidence Act 1995 (NSW) favoured granting that leave
Decision
Campbell J was satisfied that the witness had made a prior inconsistent statement on the relevant topic, as evidenced by a statement dated 28 November 2013 that had been admitted as an exhibit. The subject matter concerned the narrative of events closely associated in time with the shooting and bore on two potentially significant issues: whether the accused had a motive for murder, and whether the deceased himself had an interest in acquiring a pen gun.
The court accepted that the Crown had engaged the s 38 discretion and had identified circumstances justifying the grant of leave. The Crown had given notice at the first available opportunity, and the judge considered it in the interests of justice for the Crown to cross-examine the witness on this topic before defence counsel conducted their own cross-examination.
On the s 192 considerations, the court was satisfied that granting leave at that stage would not materially add to the length of the trial, and that denying the application would be unfair to the Crown. While the evidence may not have been of great importance to the overall case, the court considered it appropriate to have the matter properly tested in the context of a murder trial.
Orders Made
Leave was granted to the Crown to cross-examine the witness on the parts of her prior statement dealing with the phone call regarding the pen gun.
Key Takeaways
- Under s 38 of the Evidence Act 1995 (NSW), a party may seek leave to cross-examine their own witness where that witness gives evidence unfavourable to the party calling them, including by making a denial inconsistent with a prior statement.
- The Supreme Court confirmed that the existence of a prior inconsistent statement on a topic relevant to the issues at trial can satisfy the threshold for engaging the s 38 discretion.
- Section 192 of the Evidence Act 1995 (NSW) requires a court to consider factors such as the likely effect on trial length and the fairness to the applicant party when deciding whether to grant leave.
- Granting leave was considered consistent with the interests of justice where the Crown gave notice promptly, the grant would not unduly lengthen the trial, and denial would be unfair to the Crown.
- In a murder trial, even evidence of modest importance may properly be tested where it forms part of the narrative surrounding the central events and touches on questions of motive.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 38, 192
Cases cited: None cited in the judgment.