Citation: R v Spiteri-Ahern; R v Barber; R v Zraika (No 6) [2017] NSWSC 1280
Court: Supreme Court of New South Wales
Date: 11 September 2017
Judge(s): Rothman J
Background
This decision arose during a criminal trial involving multiple accused, including one accused referred to here as Ms Barber. The trial concerned a death that occurred on 30 October 2013, and a key factual issue for the Crown was whether Ms Barber had prior knowledge of the deceased's travel plans on that date.
A Crown witness gave evidence about a telephone conversation alleged to have taken place on the evening of 29 October 2013 between Ms Barber and the deceased. That witness was then cross-examined on the same subject. After cross-examination concluded, the Crown sought, during re-examination, to adduce further evidence about the telephone conversation by way of cross-examination of its own witness.
The Crown's application invoked both section 38 of the Evidence Act 1995 (which permits a party to seek leave to cross-examine its own witness in certain circumstances, including where the witness gives unfavourable evidence or makes a prior inconsistent statement) and section 39 (which governs what may be raised in re-examination).
Legal Issues
- Whether the Crown could obtain leave under section 38 of the Evidence Act 1995 to cross-examine its own witness during re-examination, in circumstances where the evidence sought had not been adduced in chief
- Whether section 38(4), which ordinarily requires such questioning to occur before other parties cross-examine, had been complied with or could be overcome by a court direction
- Whether leave under section 39(b) of the Evidence Act 1995 should be granted to allow questioning on matters arising from cross-examination
Decision
Issue 1: Section 38 application
Rothman J refused leave under section 38. His Honour observed that the evidence the Crown now sought to elicit had been identified as crucial to the Crown's case theory, yet had not been adduced in examination-in-chief. The Court described this omission as "inexplicable," particularly given that the same counsel had run a prior trial involving the same matter (at [5]-[6]).
His Honour noted that section 38(4) requires such questioning to take place before other parties cross-examine, unless the court directs otherwise. Proceeding at this stage would necessarily require the court to reopen cross-examination for the defence, a course Rothman J found uncommendable (at [8], [10]). The Court also found that the witness's evidence could not fairly be described as unfavourable to the Crown in its overall effect, and that it was not legitimate to characterise the witness as failing to make a genuine attempt to recall events (at [12]). Additionally, the Court found it could not be said in real terms that the witness had made a prior inconsistent statement, meaning the evidence only marginally engaged section 38 at all (at [13]).
Issue 2: The proper procedural sequence
His Honour observed that the correct approach, where a prior statement more fully described a conversation, would be to first seek leave under section 32 to refresh the witness's memory, and only then to seek leave under section 38 if required. Leave under section 32 was also refused (at [16]-[17]).
Issue 3: Section 39 application
Rothman J granted leave under section 39(b) to the extent it was needed. Because the telephone conversation had already been the subject of cross-examination, the Court permitted questions in re-examination directed to the totality of that conversation. This was distinguished from allowing cross-examination by leading questions under section 38 (at [15]).
Orders Made
- Leave under section 32 and/or section 38 of the Evidence Act 1995 refused
- Leave under section 39(b) of the Evidence Act 1995 granted, to the extent necessary
Key Takeaways
- Rothman J confirmed that section 38(4) of the Evidence Act 1995 ordinarily requires a party seeking leave to cross-examine its own witness to do so before other parties have cross-examined, and that departing from this sequence at the re-examination stage creates significant procedural fairness difficulties (at [8]).
- Where evidence is said to be crucial to the Crown's case, its omission from examination-in-chief will weigh heavily against granting leave under section 38 at a later stage of proceedings (at [5]-[6]).
- The correct procedural sequence when a prior statement more fully describes a matter is to first seek leave under section 32 to refresh the witness's memory before turning to section 38, rather than eliding those steps (at [16]).
- A witness whose overall evidence cannot be described as unfavourable to the party calling them, and who appears to be making a genuine attempt at recall, will not readily satisfy the preconditions for section 38 leave (at [12]-[13]).
- Section 39(b) leave for re-examination on the totality of a conversation remains available where that conversation was the subject of cross-examination, even where section 38 leave is refused (at [15]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995, ss 32, 38, 39
Cases
- Not stated