Citation: R v Spiteri-Ahern; R v Barber; R v Zraika (No 4) [2017] NSWSC 1278
Court: Supreme Court of New South Wales
Date: 6 September 2017
Judge: Rothman J
Background
Three accused were on trial in the Supreme Court. During the proceedings, a Crown witness had been cross-examined by defence counsel, with the effect of putting the witness's credibility in issue. In particular, it was suggested that the witness had fabricated evidence concerning an alleged threat made by one of the accused.
The Crown sought to re-examine the witness to adduce material going to consistent statements about the alleged threat and related matters, with the aim of re-establishing the witness's credit. Defence counsel objected to this course, prompting an ex tempore ruling on the proper operation of s 108 of the Evidence Act 1995.
The judgment arose from the need to resolve a question of general importance: when and how may a party use re-examination to adduce credibility evidence, and what constraints does s 39 of the Act impose on that process?
Legal Issues
- Whether s 108(1) of the Evidence Act 1995 permits credibility evidence to be adduced in re-examination, even where it does not arise from a prior inconsistent statement
- Whether s 108(3) requires a prior consistent statement to be directly connected to the specific prior inconsistent statement that was admitted
- Whether credibility raised in cross-examination generally opens the door to re-examination on any unrelated credit matter
- Whether the proposed re-examination questions sufficiently "arose" from the cross-examination, or whether leave under s 39(b) was required
Decision
Rothman J identified a key distinction between s 108(1) and s 108(3). Section 108(1) operates broadly: it renders the credibility rule in s 102 inapplicable to questions asked in re-examination. Provided the evidence is relevant and meets the requirements of s 39, credibility evidence is admissible in re-examination without the additional limitations that apply under s 108(3).
Section 108(3), by contrast, deals with prior consistent statements adduced in response to a prior inconsistent statement having been placed in evidence. That provision is not confined to re-examination and can arise during cross-examination, including where the Crown has cross-examined under s 38 and the accused then cross-examines more broadly. His Honour noted that the absence of definite articles in s 108(3) raises a textual question about whether a prior consistent statement must relate to the specific prior inconsistent statement admitted, though he declined to decide that question finally.
On the scope of re-examination generally, Rothman J expressed doubt that a witness could be questioned on any matter of credit in re-examination simply because credit had been raised in cross-examination. Re-examination must still comply with the "arises" requirement in s 39, which confines re-examination to matters arising out of cross-examination.
Applying these principles, his Honour found that the proposed questions were so closely connected to the credit matters raised in cross-examination that, even if they did not strictly "arise," leave ought to be granted under s 39(b). He also permitted defence counsel to cross-examine on any material thereby introduced that would not otherwise have been available to them before re-examination.
Orders Made
No formal orders were made in this decision. The ruling was procedural: the Crown was granted leave under s 39(b) of the Evidence Act 1995 to re-examine the witness on the proposed questions going to credit.
Key Takeaways
- Section 108(1) of the Evidence Act 1995 provides an absolute exemption from the credibility rule in s 102 for questions asked in re-examination, but re-examination must still satisfy the "arises" requirement in s 39.
- A distinction exists between s 108(1) and s 108(3): s 108(3) is not confined to re-examination and specifically addresses prior consistent statements adduced in response to admitted prior inconsistent statements.
- The court doubted that credibility being raised in cross-examination generally opens re-examination to any credit matter, regardless of its connection to the cross-examination.
- Where proposed re-examination questions are closely connected to the credit matters raised in cross-examination, leave may be granted under s 39(b) even where the strict "arises" threshold is not clearly met.
- Granting leave for additional re-examination may carry a corresponding entitlement for the opposing party to cross-examine on any newly introduced material.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 37, 38, 39, 102, 108
Cases:
No cases were cited in this judgment.