Citation: R v Walker (No 4) [2017] NSWSC 1026
Court: Supreme Court of New South Wales
Date: 4 August 2017
Judge(s): Schmidt J
Background
The decision arises from a criminal trial in which the accused faced charges involving alleged violence toward a woman, Ms Locke. A witness, Mr Smith, gave evidence for the Crown and was cross-examined by the defence.
During cross-examination, the defence put to Mr Smith that his evidence about reporting matters to police in June 2014 was false or fabricated, and that he had made that report only after being threatened by the accused. The defence also suggested Mr Smith had never witnessed any assault by the accused on Ms Locke, and that his account was in various respects a deliberate invention.
The Crown sought to lead, in re-examination, a recording of the emergency (000) call Mr Smith had made to police in June 2014. The accused objected. Schmidt J overruled the objection and gave written reasons.
Legal Issues
- Whether the Crown could lead the 000 call recording in re-examination under s 39 of the Evidence Act 1995 (NSW), given that cross-examination had produced an incomplete account of what Mr Smith had reported to police.
- Whether the recording was admissible as a prior consistent statement under s 108(3) of the Evidence Act 1995 (NSW), in circumstances where the defence had directly suggested Mr Smith's evidence about that police report was deliberately false.
Decision
Schmidt J permitted the Crown to lead the 000 call recording during re-examination, for two distinct reasons.
The first reason concerned completeness. Cross-examination had left an incomplete picture of what Mr Smith had actually reported to police in June 2014. Mr Smith could not remember the details of the call, and the defence had put a particular characterisation of it to him. Because what Mr Smith had said in that call arose directly out of the cross-examination, s 39 of the Evidence Act permitted the Crown to address it in re-examination. The call was made when events were fresh in the witness's memory, and the recording provided the complete and accurate account of what he had told police, including statements concerning things Ms Locke had said.
The second reason concerned credit. The defence had squarely challenged Mr Smith's credibility by suggesting, in cross-examination, that his account of the June 2014 report was a deliberate fabrication. Under s 108(3) of the Evidence Act, a prior consistent statement becomes admissible where it has been directly suggested to a witness that their evidence was deliberately false. The 000 recording constituted such a prior consistent statement, made contemporaneously with the events in question, and was therefore admissible on that additional basis.
Orders Made
No orders were made in this decision.
Key Takeaways
- Section 39 of the Evidence Act 1995 (NSW) permits re-examination to address matters that arose out of cross-examination, including where cross-examination has produced only a partial or misleading account of a prior communication.
- A prior consistent statement becomes admissible under s 108(3) of the Evidence Act 1995 (NSW) where it has been directly suggested to the witness that the relevant evidence was deliberately false, not merely mistaken.
- The contemporaneous nature of a prior statement, here a 000 call made when events were fresh in memory, is a relevant consideration supporting its admission to provide a complete and accurate record.
- Where cross-examination both undermines credit and leaves an incomplete account of prior conduct, two independent pathways to admissibility may arise simultaneously under the Evidence Act.
- The Supreme Court treated the Crown's reliance on s 65 of the Evidence Act (hearsay exception for unavailable persons) as unchallenged in respect of statements Ms Locke made, as recorded in the 000 call.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 39, 65, 108(3)
Cases:
- None cited in the judgment.