Citation: R v Ronald Edward Medich (No. 16) [2017] NSWSC 104
Court: Supreme Court of New South Wales
Date: 20 February 2017
Judge(s): Bellew J
Background
This decision arose as an interlocutory ruling during the murder trial of the accused. The Crown called a witness, referred to here as the witness, who had given evidence relevant to the killing of the deceased. The witness had a history of military service in the Bosnian Army, during which he experienced significant trauma, and had subsequently been diagnosed with post-traumatic stress disorder (PTSD).
The witness had been under the care of a treating psychiatrist since 1998 and had also received treatment from a general practitioner. Evidence before the court on the voir dire (a preliminary hearing to determine admissibility) included two psychiatric reports, a clinical note from Justice Health taken when the witness entered custody in 2010, and the witness's own oral evidence. The clinical note recorded that the witness had reported auditory hallucinations and paranoid fears at the time of his arrest. The witness also acknowledged a history of episodic heavy drinking.
Defence senior counsel sought to cross-examine the witness on this material, arguing it bore on his credibility. The Crown objected, and Bellew J conducted a voir dire to determine whether the proposed cross-examination was permissible.
Legal Issues
- Whether evidence of the witness's history of auditory hallucinations was admissible in cross-examination under s 103 of the Evidence Act 1995 (NSW) as substantially affecting the assessment of his credibility.
- Whether evidence of the witness's episodic alcohol use was admissible on the same credibility basis.
- What the threshold of "substantially affects" requires under s 103 of the Evidence Act 1995 (NSW).
Decision
Bellew J held that the proposed cross-examination was not permitted. The threshold under s 103 of the Evidence Act 1995 (NSW) requires that the evidence "substantially affect" the credibility of the witness, and the word "substantially" must be given its full weight. Citing the Court of Criminal Appeal's reasoning in R v El-Azzi [2004] NSWCCA 455, his Honour confirmed that the evidence must have the potential to have a real bearing on the credibility assessment, even though s 103 has since been amended.
On the question of hallucinations, Bellew J noted a significant evidentiary gap: the two reports from the treating psychiatrist, who had known the witness since 1998, contained no reference to hallucinations at all. The clinical note from 2010 recorded a report of hallucinations at the time of arrest, but the witness gave evidence that these symptoms had fully abated since his release from custody in 2015. There was no evidence that hallucinations had persisted or that any further psychiatric review had confirmed the severity suggested by the 2010 note.
On the question of alcohol use, Bellew J found that episodic drinking did not meet the statutory threshold either. Taken together, the history of depressive illness and drinking did not, in his Honour's assessment, substantially affect the witness's credibility within the meaning of s 103.
Orders Made
No orders were made in this decision. The ruling was that the proposed cross-examination would not be permitted.
Key Takeaways
- Section 103 of the Evidence Act 1995 (NSW) permits cross-examination on credibility only where the evidence "substantially affects" the assessment of the witness's credibility; the word "substantially" carries real weight and sets a meaningful threshold.
- Although s 103 has been amended since R v El-Azzi [2004] NSWCCA 455, Bellew J confirmed that the principle from that case, that the evidence must have the potential for a real bearing on credibility, continues to provide guidance.
- A witness's documented history of depressive illness and treatment does not, without more, satisfy the s 103 threshold for cross-examination on credibility.
- Where a treating psychiatrist's reports spanning many years contain no reference to hallucinations, that absence carries significant weight against allowing cross-examination on a single clinical note recording such symptoms.
- A history of episodic alcohol use was insufficient, on the facts here, to substantially affect the credibility assessment required by s 103.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 103
Cases:
- R v El-Azzi [2004] NSWCCA 455
- R v Medich (No 13) [2017] NSWSC 70