Citation: R v Spiteri-Ahern; R v Barber; R v Zraika (No 5) [2017] NSWSC 1279
Court: Supreme Court of New South Wales
Date: 6 September 2017
Judge(s): Rothman J
Background
This decision arose as an interlocutory ruling during the trial of three accused, one of whom faced a charge of murder. The ruling concerned a witness whose credit had been challenged during cross-examination, prompting the Crown to seek to re-establish that credit in re-examination.
The Crown wished to tender police statements made by the witness on 31 October 2013, shortly after the alleged offence. Leave to adduce this material in re-examination had already been granted for credit purposes in a related ruling (No 4 in the series). The live question in this ruling was whether that evidence, once admitted, could be used for all purposes, including as proof of the facts it asserted, or whether its use should be confined to credit alone.
Legal Issues
- Whether police statements admitted in re-examination under s 108 of the Evidence Act 1995 to re-establish a witness's credit could also be used as proof of the facts asserted in those statements
- Whether the Court should make a limiting order under s 136 of the Evidence Act 1995 restricting the use of that evidence to credit only
- How the interplay of ss 32, 38, 39, 108, 136, and 192 of the Evidence Act 1995 governed the exercise of that discretion
Decision
Issue 1: General admissibility and potential use of the evidence
Rothman J confirmed the Crown's submission that evidence, once admitted, is in principle available for all purposes, including proof of the fact asserted, unless the Court makes a limiting order under s 136 of the Act (at [5]). The admissibility of the material for credit purposes was not in dispute at this stage; the contested question was whether use beyond credit was appropriate (at [6]).
Issue 2: Whether use for proof of fact was appropriate in the circumstances
The Crown argued that statements made close in time to the events were more reliable than in-court evidence given four years later, and that no limitation should be imposed. Rothman J accepted the general reliability proposition but found it carried greater weight where evidence is led in chief, not in re-examination (at [3]-[4]). The Crown had not sought to refresh the witness's memory during examination-in-chief, nor had it pursued the statements through the mechanisms available under ss 32 or 38 of the Act (at [11]-[12]).
Issue 3: Prejudice and the s 136 limiting order
Rothman J held that admitting the statements as proof of the facts asserted would be highly and unfairly prejudicial to each of the accused. The witness had not formally attested to the statements and had acknowledged her memory was impaired at the time they were made (at [14]-[15]). The judge applied the considerations in s 192, including the potential unfairness to the accused and the form in which the evidence was being tendered (at [7], [15]). Accordingly, his Honour limited the use of the evidence to credit under s 108, pursuant to s 136 of the Act (at [16], [18]).
Issue 4: Future questioning in re-examination
The Court also confirmed that the Crown retained the ability to ask non-leading questions in re-examination, provided those questions genuinely arose from the cross-examination and were asked and answered in the ordinary way, rather than by tendering the written statement (at [17], [19]).
Orders Made
- Pursuant to s 136 of the Evidence Act 1995, the use of the evidence admitted in re-examination (for which leave had already been granted) is limited to credit only, under s 108 of the Evidence Act 1995.
Key Takeaways
- Under s 136 of the Evidence Act 1995, a court may limit the use of evidence that would otherwise be available for all purposes; this ruling illustrates that limitation applied to prior statements tendered in re-examination to restore a witness's credit (at [5], [16]).
- Evidence admitted under s 108 to re-establish credibility does not automatically become available as proof of the facts it asserts, particularly where the Crown did not pursue the available mechanisms under ss 32 or 38 during examination-in-chief (at [11]-[12]).
- The context and stage at which evidence is adduced matters: the contemporaneity and reliability of a statement made shortly after an event carries more weight when tendered in chief than when tendered for the first time in re-examination (at [3]-[4]).
- Rothman J found the statements highly and unfairly prejudicial to the accused when sought to be used as proof of fact, given that the witness had not attested to them and acknowledged impaired memory at the time of making them (at [14]-[15]).
- Even where a limiting order is made, the Crown retains the ability to ask non-leading questions in re-examination that genuinely arise from cross-examination, answered orally in the ordinary way rather than through tendered documents (at [19]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995, ss 32, 38, 39, 108, 136, 192
Cases
- Not stated