Citation: R v Ronald Edward Medich (No. 19) [2017] NSWSC 169
Court: Supreme Court of New South Wales
Date: 1 March 2017
Judge: Bellew J
Background
The accused stood trial for murder. The Crown's principal witness, a man who had pleaded guilty to involvement in the deceased's murder, was serving a sentence of imprisonment. At the end of 2016, that witness and several others were charged with conspiring to defraud the accused, the allegation being that they had attempted to extort a large sum of money in exchange for the witness not giving evidence at trial.
Pursuant to its obligation to conduct the trial fairly, the Crown made each of the alleged co-conspirators available for cross-examination by the accused, without asking any questions of those witnesses in chief. One such witness, Hatfield, was cross-examined by counsel for the accused about a prison visit at which the principal Crown witness and others were present.
During cross-examination, Hatfield asserted that the Crown's principal witness had admitted to lying under oath at the accused's committal proceedings. That account appeared inconsistent with Hatfield's own earlier police statement, which recorded only "small talk about boxing" before those present were separated. The Crown then sought leave to cross-examine Hatfield under section 38 of the Evidence Act 1995 (NSW) to explore that inconsistency.
Legal Issues
- Whether the Crown, having called Hatfield and made him available for cross-examination without asking any questions in chief, could obtain leave under section 38 of the Evidence Act 1995 (NSW) to cross-examine him on a prior inconsistent statement
- Whether granting such leave would cause unfair prejudice to the accused within the meaning of section 137 of the Evidence Act 1995 (NSW)
- What factors under sections 38(6) and 192(2) were relevant to the exercise of the court's discretion
Decision
Bellew J granted leave to the Crown to cross-examine Hatfield under section 38. The judge found that the circumstances fell squarely within the provision: Hatfield's evidence during cross-examination was unfavourable to the Crown's position, and there was a prior inconsistent statement in the form of his police statement recording no relevant admissions at the meeting.
The defence argued the situation was "unique" because the Crown had called Hatfield without asking him any questions at all in chief, and that granting leave would be unfairly prejudicial. Bellew J rejected the submission that the unusual procedural posture placed the application outside the reach of section 38. The judge drew on the Court of Criminal Appeal's reasoning in Kanaan v R [2006] NSWCCA 109, which supported the conclusion that it would be unfair to the Crown to refuse leave in such circumstances.
On the question of unfair prejudice under section 137, Bellew J distinguished between prejudice generally and "unfair" prejudice. The Crown's evidence will frequently be prejudicial to an accused; section 137 is directed at prejudice of an unfair character. Senior counsel for the accused ultimately conceded that if he were given a further opportunity to cross-examine Hatfield after the Crown's cross-examination concluded, there would be little or no danger of unfair prejudice. The judge was not satisfied that any unfair prejudice would result from granting leave.
Orders Made
• Grant leave to the Crown under s. 38 to cross-examine Hatfield
Key Takeaways
- Section 38 of the Evidence Act 1995 (NSW) is not confined to situations where a party has conducted a conventional examination in chief. The Supreme Court held that a party which calls a witness and makes them available for cross-examination without asking any questions in chief may still seek leave to cross-examine that witness on a prior inconsistent statement.
- Where a called witness gives evidence during cross-examination by another party that is inconsistent with a prior statement, that inconsistency can ground an application for leave under section 38, even if the inconsistency only emerged during cross-examination by the opposing party.
- Relying on Kanaan v R [2006] NSWCCA 109, the court confirmed that refusing leave in such circumstances would itself risk unfairness, this time to the party that called the witness.
- Under section 137, the relevant question is whether evidence carries a danger of "unfair" prejudice, not merely whether it is prejudicial to the accused. Evidence adduced by the Crown will almost invariably be prejudicial; that does not make it unfairly so.
- Procedural fairness concerns about the order of cross-examination can, in appropriate cases, be addressed by directing that the opposing party have a further opportunity to cross-examine the witness after the calling party has completed its section 38 questioning.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), sections 38, 39, 137, 192
Cases
- Kanaan and ors v R [2006] NSWCCA 109
- R v Parkes [2003] NSWCCA 12