AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 30 August 2017

R v Terkmani

[2017] NSWSC 1154

Sexual offencesHomicide
CRIME EXAMINING THEM GREATER AVAILABILITY OF CROSS EXAMINATION BY THE CROWN

Citation: R v Terkmani [2017] NSWSC 1154
Court: Supreme Court of New South Wales
Date: 30 August 2017
Judge(s): McCallum J

Background

The accused stood trial for the murder and aggravated sexual intercourse without consent of a sixteen-year-old boy, alleged to have occurred in May 2015 at an abandoned house in Villawood. The Crown case was entirely circumstantial. Central issues included the accused's association with the abandoned house and an alibi put forward by the accused's father.

During the trial, the Crown applied on multiple occasions for leave under s 38 of the Evidence Act 1995 (NSW) to question its own witnesses as though cross-examining them. Several Crown witnesses gave evidence inconsistent with their earlier statements to police, and some of that inconsistent evidence tended to support innocent explanations for forensic evidence against the accused. McCallum J reserved her reasons for granting leave at each point so as not to interrupt the flow of the trial. This judgment provides those reserved reasons.

The accused was ultimately found guilty of both offences on 21 August 2017. These reasons therefore address the procedural and evidentiary rulings made during the trial rather than the verdict itself.

  • Whether the Crown should be granted leave under s 38 of the Evidence Act to question its own witnesses as though cross-examining them, where those witnesses gave evidence inconsistent with their prior statements to police
  • Whether leave should be granted after the accused's counsel had already completed cross-examination of those witnesses, requiring a departure from the usual sequence under s 38(4)
  • What constraints should apply to the manner and extent of Crown cross-examination under s 38, including under s 192 of the Evidence Act
  • How s 38 operates where the Crown is obliged to call an alibi witness (here, the accused's father) in its own case, and what that obligation means for the scope of available cross-examination

Decision

McCallum J granted leave to the Crown under s 38 on each occasion, subject to terms and constraints in each instance. The primary basis for granting leave was that several witnesses gave evidence at trial that was materially inconsistent with statements they had made to police, and that inconsistency was relevant either to the Crown's circumstantial case or to the reliability of the alibi evidence.

In respect of the accused's cousin, the key inconsistency was that his police statement said he had never been inside the abandoned house, whereas at trial he said he had been inside on multiple occasions. Related cross-examination about scissors and a toaster was also permitted, because those details were potentially significant to the forensic evidence and had emerged in a way that could provide an innocent explanation for trace evidence associated with the accused.

The accused's father presented a distinct situation. As the primary alibi witness, the Crown was obliged to call him in its own case. McCallum J recognised that this obligation carried with it a correspondingly greater latitude for the Crown to test his evidence by cross-examination, given that he was advancing evidence directly favourable to the defence. The court nonetheless declined to grant leave on several points, particularly where cross-examination might have exposed the accused's bail conditions or where the probative value of the questioning was outweighed by the risks of unfairness.

Throughout, McCallum J applied the considerations set out in s 192 of the Evidence Act, including the importance of the evidence, the risk of undue length, and fairness to both parties and witnesses. The court also took care to limit cross-examination to matters genuinely in issue and to prevent the Crown from using s 38 as a vehicle for general attacks on credibility beyond what was warranted.

Orders Made

• Leave granted under s 38 to the Crown to cross-examine the witness on the matters specified in points one through eleven as outlined in the judgment

Key Takeaways

  • Section 38 of the Evidence Act 1995 (NSW) permits a party to seek leave to cross-examine its own witness where that witness gives evidence unfavourable to the party, or makes a prior inconsistent statement, but leave is not automatic and must be assessed against the factors in both s 38 and s 192.

  • Where the usual sequencing under s 38(4) has not been followed (because the opposing party has already cross-examined), the court retains a direction-making power to permit Crown cross-examination out of sequence, though this requires specific justification.

  • A court is entitled to impose terms and constraints on the extent of s 38 cross-examination, including refusing leave on particular topics where the risk of unfairness or collateral damage outweighs the probative value of the questioning.

  • The Crown's obligation to call an alibi witness in its own case does not preclude, and may in fact support, a broader entitlement to cross-examine that witness under s 38, given that the witness is advancing evidence directly favourable to the accused.

  • Prior inconsistent statements by Crown witnesses are not sufficient on their own to justify unlimited cross-examination; the court must still assess each proposed line of questioning against the specific criteria in ss 38, 103, and 192 of the Evidence Act.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 150
- Evidence Act 1995 (NSW), ss 38, 103, 192

Cases:
- Browne v Dunn (1983) 6 R 67
- Kanaan v R [2006] NSWCCA 109